United States Court of Appeals
For the First Circuit
No. 10-1026
NITZA I. COLÓN-FONTÁNEZ,
Plaintiff, Appellant,
v.
MUNICIPALITY OF SAN JUAN,
Defendant, Appellee,
JANE DOE; JOHN DOE; CORPORATION X, Y, Z,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Siler,* Circuit Judges.
Vilma M. Dapena-Rodríguez, for appellant.
Angel A. Valencia-Aponte, with whom Cristina S. Belaval-Burger
and Martínez Odell & Calabria, were on brief for appellee.
October 12, 2011
*
Of the Sixth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Plaintiff-Appellant Nitza I.
Colón-Fontánez ("Colón") appeals the district court's award of
summary judgment to her employer, the Municipality of San Juan (the
"Municipality"), on her claims of disability discrimination and
retaliation in violation of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. ("ADA") and the Rehabilitation Act, 29
U.S.C. § 701 et seq., and retaliation in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000 et seq. We conclude that
summary judgment was properly granted as to each of Colón's claims.
We further hold that the district court committed no reversible
error when it (1) refused to consider evidence for which no
corresponding English translation was provided to or properly filed
with the court; (2) admitted summary charts prepared by a paralegal
employed by the defendant-appellees' law firm in this case; and (3)
dismissed Colón's alleged equal protection claim sua sponte.1 We
therefore affirm the decision of the district court.
I. Background
A. Colón's Employment at the Municipality
Colón first began working for the Municipality in 1989 as
a temporary worker. In 1992, the Municipality reclassified Colón
as a regular employee. Colón's position with the Municipality was
1
Although Colón references an equal protection claim in her
amended complaint, she does not list it in the complaint's causes
of action or provide any legal or factual argument supporting it.
We address both the substance and merits of this alleged claim
infra, as it is an issue raised on appeal.
-2-
reclassified multiple times in subsequent years. Of significance
to this appeal is her reclassification on June 30, 2006, when the
Municipality appointed Colón as an "Auction Officer," which became
effective retroactively on May 1, 2005.
Colón's position as an Auction Officer required that she,
among other duties, analyze bid recommendations, prepare bid
notices, contracts, and award notices, attend the openings and
holdings of bids, submit bid proposals for recommendations,
evaluate recommendations and submit them to the Bid Board, and
direct administrative work concerning the bids and proposals among
various departments. To perform these duties, the Auction Officer
was required to be physically present in the Auction Department.
Additionally, auction papers could not be removed from the auction
office premises.
As an Auction Officer, Colón worked in the Auction
Department located in the Municipal Tower building in San Juan,
Puerto Rico.2 The Municipal Tower building is accessible from a
multi-floor parking building that is adjacent to the Municipal
Tower building. The Municipality pays rent for approximately four
hundred parking spaces for its employees. The Municipality pays
$40.00 and the employee pays $20.00 for each rental of a parking
2
Employee positions and department titles are not consistently
translated in the record. To maintain uniformity, we refer to
Colón's department as the Auction Department and to her title at
the time she requested a parking spot as Auction Officer.
-3-
space. The Municipal Tower itself offers approximately seventy-
five parking spaces.
As an Auction Officer, Colón was under the supervision of
several Municipality employees, all holding different managerial
positions and varying degrees of authority over Colón during the
years relevant to this dispute. These supervisors included José
Alicea Rivera ("Alicea"), Municipal Secretary and President of the
Municipality's Auction Board; Ivonne Rodríguez ("Rodríguez"),
Director for the Purchases and Bids Department and one of Colón's
main supervisors during the relevant period; Maria Marcano
("Marcano"), Rodríguez's first line supervisor in the Auction
Department; Julia Lanzó ("Lanzó"), manager of the Auction
Department; James Delgado ("Delgado"), an auction official who was
second in command in the Auction Department and who served as
acting manager if Lanzó was not present; and José Rivera-Hernández
("Rivera"), who served as the Special Assistant of the Municipal
Secretary and who verified that all persons parked in the Municipal
Tower parking lot were authorized to do so.
Generally, the Municipality scheduled Colón to work from
8:00 a.m. to 4:00 p.m. during the week. Due to health problems,
however, Colón developed a pattern of absenteeism that continued
throughout her employment.3 Her recurring absences made it
3
Although the record shows reference to several health conditions
or illnesses for which Colón sought leave, we limit our analysis to
the alleged disability at issue here, fibromyalgia, for which Colón
-4-
necessary for her supervisors to temporarily shift Colón's work
schedule and assignments in order to accommodate her absences and
minimize work conflicts.
Several of Colón's supervisors testified as to the
quality of Colón's work performance and overall attendance during
her tenure. For instance, Lanzó testified that "in terms of the
performance of her work, Nitza [Colón] was excellent." Lanzó
acknowledged that despite her excellent work performance, she
"would have liked for [Colón] not to get sick and to come to work"
more often. Lanzó also noted that regardless of any health issues
Colón might have undergone during her employment, "she would
perform her tasks . . . [,] [i]n that sense I have no complaints
about Nitza," and that Colón "never stopped doing her work the way
she used to, she always did it." In contrast, Rodríguez stated
that "most of [Colón's] absences were and are unannounced;" that
her attendance "is totally unpredictable;" and that "[s]he is
absent continuously, most of the time without prior notice."
B. Municipality Attendance Policy
Although the Municipality's policies expressly require
that all employees regularly and punctually attend work and comply
with established work schedules, they do permit leave for illness.
sought reasonable accommodation and because of which she allegedly
suffered retaliatory actions.
-5-
Specifically, the Municipality's attendance manual provides that
career employees are entitled to accrue sick leave "proportional to
the number of hours comprised by the assigned work schedule." If
an employee exceeds her number of sick days, the manual states that
"sick leave can be accrued up to a maximum of ninety (90) working
days by the end of any calendar year." Additionally, the
Municipality's "Manual Regarding Work Schedule, Attendance
Registry, Accrual and Use of Leave" notes possible justifications
for an employee's absence or tardiness, including an employee or
family member's illness, an employee's injury, or a death in the
employee's family. Lastly, the manual states that the Municipality
is permitted to take disciplinary measures against an employee who
is frequently absent from work in violation of established
attendance norms or who exceeds the designated leaves of absence
permitted.
C. Co-Worker Observations of Colón's Health Problems4
Lanzó, one of Colón's supervisors, testified that in
2006, Colón's absences became "more and more frequent" and that
Colón's family members sometimes called to inform the office that
Colón would be absent on account of illness. Lanzó also stated
that "sometimes [Colón] came in swollen" to the office, and that
4
As will be addressed subsequently, we make no comment as to
whether Colón's alleged health condition constituted a disability
for purposes of her ADA claim. We offer this testimony solely for
purposes of providing additional background color to the factual
palette.
-6-
Colón claimed to have pain in "[h]er joints, her knees." Lanzó
also noted that Colón "was not one to stand up alot
[sic] . . . [and] remained at her . . . desk," and that "regardless
of the pain [Colón] may have had . . . she would perform her
tasks."
Yesiree Alemán O'Neill ("Alemán"), a coworker in the
Auction Department, testified that because of her condition, Colón
could not carry the work files, which were "very big and heavy,"
but that she otherwise was able to carry out her immediate work
tasks. Adela Otero Ortiz ("Otero") also testified that Colón "was
always feeling sick."
D. Colón's Attendance Record
Colón's attendance record throughout her employment
consists of numerous days during which she either was tardy or
altogether absent from work on account of medical appointments,
illness, or personal matters. Further, at times Colón's leave
periods exceeded the amount permitted by the Municipality. On
account of her excess leave days, the Municipality would take some
form of compensatory action, like docking Colón's pay. A summary
of Colón's attendance record reveals the following:5
In 1992, the Municipality approved Colón's request for
the advancement of eighteen days of sick leave, but later denied a
5
Additional details concerning Colón's attendance record will be
addressed infra when considering her arguments on appeal.
-7-
subsequent request because Colón had "present[ed] a pattern debt on
account of sick leave." Colón's performance evaluation for that
same year noted that overall Colón "surpassed the expected result"
in several performance categories, but that she needed to "work[]
to recover her health to improve her attendance." In 1993, Colón
was absent from work approximately twenty percent of the time, and
in 1994, approximately fifty-nine percent of the time. The
Municipality approved Colón's request for leave without pay from
July 19, 1994 through January 18, 1995.
In 1995, Colón was on leave without pay from January 31,
1995 through April 25, 1995. In September of that same year, the
Municipality sent Colón a letter informing her that as of
September 30, 1995, she would "have no accrued leave balance."
Colón's 1995 performance evaluation stated that Colón needed to
make improvements in her attendance and that she "did not achieve
[the] expected level" of attendance for that year.
In 1996, Colón was granted leave without pay for medical
treatment for "an injury in [her] left foot" from May 16, 1996
through August 16, 1996.6 Colón received high rankings on her 1996
6
A letter from the Municipality dated June 14, 1996 provided that
Colón's leave period for her foot treatment would be for three
months. It also stated that "[s]ame was effective from March 16,
1996, and shall extend until August 15, 1996." It is unclear from
the record whether the March 16, 1996 date was a typo, as all prior
correspondence between Colón and the Municipality regarding her
leave request refers to May 16, 1996. For purposes of our review,
we need not determinatively resolve this matter as it remains clear
that Colón was on leave for at least a quarter of the 1996 calendar
-8-
performance evaluation, but was informed that she needed to make
improvements in her attendance. In 1997, Colón sought leave
without pay on account of a "surgical intervention of the knee on
[her] left foot [sic]," which Human Resources forwarded along for
approval in February 1997.7 In 2000, Colón was absent
approximately twenty-three percent of the time she was scheduled to
work. In July of that year, Colón requested authorization for the
transfer of five days of vacation leave from another employee's
balance because she already had exhausted her own leave balance;
the Municipality authorized the transfer.
In 2001, Colón was absent approximately twenty-five
percent of the time she was scheduled to work. In June of that
year, Colón sent the Municipality a request to transfer days from
several co-workers' balances because she already had exhausted all
of her leave balances, including sick and annual leave; the
Municipality approved Colón's request. In December 2001, Colón
again requested a transfer of days from co-workers because she had
exhausted her leave balances. Colón's 2002 attendance records show
that she was absent approximately twenty-one percent of the total
time she was scheduled to work, and that in May, she requested
authorization to transfer several co-workers' leave time because
year.
7
Neither party has provided the Court with information concerning
Colón's attendance record for the years 1998 and 1999.
-9-
she already had exhausted her leave balances. The Municipality
authorized the request. Colón's 2002 performance evaluation noted
that although Colón is "very responsible and diligent," her
attendance "needs improvement."
In 2003, Colón was absent from work approximately twenty-
five percent of the time. Colón's performance evaluations for that
year state that her overall attendance and punctuality "need[]
improvement." In October 2003, Colón sought to transfer co-
workers' leave days because she had exhausted her annual and sick
leave balances. In 2004, Colón was absent approximately nineteen
percent of the time, with her performance evaluation stating that
her attendance and punctuality required improvement. In 2005,
Colón was absent approximately thirty percent of the time; her
performance evaluator stated that her "health condition prevents
her from attending regularly," but noted that "she has been
improving greatly" in this area.
Colón was absent from work approximately fifty-nine
percent of the time in 2006, requesting several -- subsequently
granted -- leaves without pay (from January 1 through January 16;
April 1 through April 30; October 3 through 23; October 24 through
30; and November 2 through January 12, 2007). Colón was absent
approximately fifty-six percent of the time in 2007, and
approximately fifty-six percent of the time in 2008. In October
2008, Colón applied for a three month period of leave without pay
-10-
because she already had exhausted her annual and sick leave
balances; the Municipality granted Colón's request.
E. Shifting Gears: Colón's Reasonable Accommodation Request
On October 24, 2006, Colón sent a letter to José Rivera
requesting "a reserved parking space near the entrance and exit of"
the Municipality Tower building "pursuant to medical
recommendations and the provisions of the [Americans with
Disabilities Act of 1990]." Colón's letter stated that she also
had included medical evidence and information concerning reasonable
accommodations.
On receiving no response, Colón sent a follow-up email to
Rivera, copying Rodríguez, Lanzó, and Jorge Colomer Montes on
November 1, 2006. On November 2, 2006, Rivera emailed Colón
stating that "due to parking space needs at this time we cannot
assign [you] a reserved parking space." Rivera also provided that
if Colón had a handicapped identification pass, she could use any
of the six parking spaces specifically assigned for handicapped
persons that were located near the building's entrance.
Rivera testified that he received no response from Colón
after his November 2 reply, and thus, he "took it as if she had
accepted it . . . I didn't see why I had to look any further."
Rivera also testified that sometime after his November 2 response,
he and Colón had an informal encounter during which the subject of
Colón's parking spot request was raised. Rivera stated that he
-11-
again informed Colón that there were no parking spaces available
"because the parking lot was full," i.e., all spots had been
assigned to other Municipality employees. Rivera also stated that
he was aware of Colón's subsequent petition to the Office of the
Ombudsman for Persons with Disabilities.
F. Turning to Administrative and Judicial Highways: Petitions,
Complaints and Motions
Colón filed a petition with the Office of the Ombudsman
for Persons with Disabilities on March 28, 2007. In this petition,
Colón explained that on account of her health condition, which her
doctor had determined did not allow her to walk long distances,
Colón had requested a parking spot as a reasonable accommodation.
Colón stated that the Municipality denied her accommodation
request, instead offering her the use of reserved handicapped
parking spots, which generally were unavailable by the time Colón
arrived at work. Colón reiterated her request for a parking spot.
Colón also filed a "Notice of Charge of Discrimination"
with the Equal Employment Opportunity Commission ("EEOC") against
the Municipality Mayor on June 18, 2007. Colón alleged
discrimination under the ADA, retaliation, and continuing
violations against her for having requested a reasonable
accommodation. The EEOC responded on August 31, 2007, informing
Colón of her right to sue.
On November 11, 2007, Colón filed her original complaint
in this dispute against the Municipality, which she subsequently
-12-
amended on September 12, 2008. Docket Nos. 1, 48. In her amended
complaint, Colón asserted that the Municipality discriminated and
retaliated against her in violation of the ADA and the
Rehabilitation Act, and that it retaliated against her in violation
of Title VII of the Civil Rights Act. Colón also raised
supplemental Commonwealth claims under Article 1802 of the Puerto
Rico Civil Code, Law No. 115 of December 20, 1991, and Law No. 44
of July 2, 1985.8
On August 31, 2009, the Municipality moved for summary
judgment. Colón filed her opposition on September 21, 2009, and
the Municipality replied on October 16, 2009. On December 2, 2009,
the district court granted the Municipality's summary judgment
motion. Finding no genuine issue of material fact as to Colón's
various allegations, the court dismissed Colón's claims of
disability discrimination and retaliation with prejudice, and it
dismissed Colón's Commonwealth law claims without prejudice. Colón
appealed, raising several evidentiary matters and asserting that
the district court erred in dismissing her ADA claim, her
retaliation claim, her hostile work environment claim, and her
equal protection claim.
8
Colón also alleged an equal protection claim in the jurisdiction
section of her amended complaint, to be addressed infra.
-13-
II. Discussion
A. Standard of Review
We start our appellate engines considering the applicable
standard of review. Summary judgment is properly granted where the
movant "shows that 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). The movant must support her motion by
citing specifically to materials in the record or by "showing that
the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
"The scope of appellate review of entry of summary
judgment in ADA cases, as in all others, is de novo." Mulloy v.
Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006) (quoting EEOC v.
Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997)) (internal quotation
marks omitted). We must construe "the record in the light most
favorable to the nonmovant and resolv[e] all reasonable inferences
in that party's favor" while safely ignoring "conclusory
allegations, improbable inferences, and unsupported speculation."
Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (citation
and internal quotation marks omitted). In doing so, "we are not
married to the trial court's reasoning but, rather, may affirm on
any independently sufficient ground made manifest by the record."
Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir. 2011).
-14-
B. Evidentiary Issues
At the outset, we address several of Colón's evidentiary
arguments which she contends justify a finding of reversible error.
Because these evidentiary arguments affect the record we review in
determining whether the district court appropriately granted
summary judgment, we turn to these arguments first.
1. Translation of Exhibits
Colón submits that the district court disregarded
"crucial and significant evidence" filed in support of Colón's
opposition to summary judgment motion on the grounds that such
exhibits either had not been directly translated into English, or
corresponding translations were not provided with the exhibits.
Colón asserts that the district court's refusal to consider such
evidence constitutes reversible error because the exhibits either
were filed in English or submitted with their corresponding
translations, thereby requiring the court's consideration. Colón
lists the following exhibits as those disregarded by the district
court: 1, 17, 18, 20, 21, 23, 31, 35, 37, 38, 41, and 42.
We begin with Local Rule 5(g) of the United States
District Court for the District of Puerto Rico, which provides that
"[a]ll documents not in the English language which are presented or
filed, whether as evidence or otherwise, must be accompanied by a
certified translation into English . . . ." D.P.R. Civ. R. 5(g)
(emphasis added); see also 48 U.S.C. § 864 (providing that "[a]ll
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pleadings and proceedings in the United States District Court for
the District of Puerto Rico shall be conducted in the English
language") (emphasis added); González-De-Blasini v. Family Dep't,
377 F.3d 81, 89 (1st Cir. 2004) (holding that "[t]he district court
should not have considered any documents before it that were in the
Spanish language") (emphasis added). Thus, the law is clear that
any submitted exhibit not directly translated into English or
provided with a corresponding English translation may properly be
disregarded by the district court.
In this case, we view the scope of Local Rule 5(g)
through the prism of another local rule, Rule 56, also known as the
anti-ferret rule in the District Court for the District of Puerto
Rico. See P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 130
(1st Cir. 2010). Local Rule 56, which governs summary judgment
motion practice, requires, among other requisites, that each party
submit "separate, short, and concise" statements of fact that are
set forth in numbered paragraphs with specific citations to the
record, including "the specific page or paragraph of identified
record material supporting the assertion." D.P.R. Civ. R. 56(b),
(c) & (e). The purpose of this practice "is to relieve the
district court of any responsibility to ferret through the record
to discern whether any material fact is genuinely in dispute." CMI
Capital Mkt. Inv., LLC v. González-Toro, 520 F.3d 58, 62 (1st Cir.
2008) (footnote omitted). Thus, when read in connection with Local
-16-
Rule 5(g), it is clear that parties moving for or opposing summary
judgment in the District Court for the District of Puerto Rico, in
addition to providing "short[] and concise" statements of material
fact containing proper citations to the identified record, must
also provide exhibits that either have been translated into
English, or that contain a corresponding translation thereto.
"We review the district court's application of a local
rule for abuse of discretion." Mariani-Colón v. Dep't of Homeland
Sec. ex. rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007) (citation
omitted); see also Peña-Crespo v. Puerto Rico, 408 F.3d 10, 14 (1st
Cir. 2005) (finding no abuse of discretion where district court
excluded plaintiff's expert testimony because plaintiff did not
provide an English translation of the expert's report and resume).
Here, the district court stated that Colón "failed to translate
numerous exhibits . . . . No translations were submitted for
Exhibits 1, 17, 18, 20, 21, 23, 31, 33, 35, 37, 38, 39, 41, and 42.
Any fact alleged by Colon-Fontanez that is based on an untranslated
exhibit will be disregarded." See Colón-Fontánez v. Municipality
of San Juan, 671 F. Supp. 2d 300, 309 (D.P.R. 2009). Reviewing the
evidence before us, it is clear that, at least in the appellate
record, the majority of the aforementioned exhibits contain English
translations.9 What is entirely unclear from this record, however,
9
Only exhibits 20, 33, 38, and 39 presently do not have a
corresponding English translation available. Because it does not
appear from the record as if any translation ever was provided as
-17-
is if or when these translated exhibits were provided to the
district court below.10
According to the record, three different motions to
submit certified translations in support of Colón's opposition to
summary judgment motion were provided to the court. The first
motion, dated October 7, 2009, moved to submit the following
exhibits: 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15. The
second motion, also dated October 7, 2009, moved to submit the
following exhibits: 16, 22, 24, 25, 26, 27, 28, 29, 30, 32, 34, 36,
to these four exhibits, we find no abuse of discretion in the
district court's refusal to consider them.
10
Interestingly, appellee does not argue this point. Instead,
appellee seems to concede, with no reference to the record, that
"English translations were provided for the balance" of the
exhibits. This unsubstantiated statement is insufficient for
purposes of confirming when or if these exhibits were submitted.
Indeed, at first blush on our review, it appeared as though
English translations had been provided for the contested exhibits
because we located them in the appellate record. However, the
translated exhibits appear immediately after Colón's Index of
Exhibits, which according to the district court docket, was filed
with exhibit attachments on September 21, 2009, but none of which
were translated. Docket 187. Further confirming this point, Colón
filed a motion for an extension of time by which to file
translations for the submitted exhibits on September 22, 2009, see
Docket 182, which the court granted in part that same day, giving
Colón until October 7, 2009 to file the English translations.
Docket No. 186. On October 7 and 11, 2009, Colón filed three
different motions to submit certified translations, which did not
include exhibits 1, 17, 18, 19, 20, 21, 23, 31, 33, 35, 37, 38, 39,
and 41.
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40, and 42. The last motion, dated October 11, 2009, moved to
submit exhibit 19.11
These appear to be the only motions in the record
pursuant to which Colón sought to enter certified translated
exhibits to her opposition to summary judgment into the district
court's record. Thus, by process of elimination, it seems that the
only exhibits for which Colón failed to file a motion to submit
certified translations were exhibits 1, 17, 18, 19, 20, 21, 23, 31,
33, 35, 37, 38, 39, and 41.12 It is impossible for us, reviewing
the record cold on appeal, to determine when, how, and -- most
importantly, if -- these other translated exhibits were submitted
to the district court. A review of the district court's docket
suggests that any such translations either were never submitted, or
were not filed in accordance with proper procedures. Because the
"law incontrovertibly demands that federal litigation in Puerto
11
Though the district court set a deadline of October 7, 2009, for
the filing of the certified exhibit translations, the record shows
that the district court accepted the later filing of Exhibit 19 on
October 13, 2009. See Docket 210.
12
We note that the district court listed exhibit 42 as one of the
exhibits that it would disregard because no English translation was
provided. See Colón-Fontánez, 671 F. Supp. 2d at 309. On
reviewing the record, however, it seems clear that Colón's second
motion to submit exhibits with certified translations did, in fact,
include exhibit 42 (deposition of Adela Otero). A review of the
record also shows that the district court actually did consider
this exhibit, discussing it at length in assessing Colón's
allegations of retaliation and a hostile work environment. See id.
at 321, 323, 324 & n.35, 337. Thus, any error in the district
court's statement that it would disregard exhibit 42 is harmless.
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Rico be conducted in English," and that the district court "sift
out non-English materials" when "collecting a record for summary
judgment," we cannot say that the district court's refusal to
consider exhibits for which an English translation either was never
provided or was never properly filed with the court constituted an
abuse of discretion. Estades-Negroni v. Assoc. Corp. of N. Am.,
359 F.3d 1, 2 (1st Cir. 2004); see also Cordero-Soto v. Island
Fin., Inc., 418 F.3d 114, 118 (1st Cir. 2005) (finding no abuse of
discretion where district court excluded from consideration
documents not filed in English).
2. Admission of Materials Prepared by a Paralegal
Colón also asserts that the district court committed
reversible error when it admitted pursuant to Fed. R. Evid. 1006
statements, charts, and computerized reports that had been prepared
by a paralegal belonging to the law firm representing the
Municipality in this case. We review the court's admission of an
exhibit, like summary charts, for abuse of discretion. United
States v. DeSimone, 488 F.3d 561, 576 (1st Cir. 2007).
We find no error in the district court's admission of the
summary graphs. Rule 1006 provides that "[t]he contents of
voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of
a chart, summary, or calculation." Fed. R. Evid. 1006. The
summary charts and graphs at issue consisted of a condensed
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presentation of Colón's extensive record of work attendance over
her near two-decade period of employment. Thus, the charts served
as an appropriate presentation of "voluminous writings" that
"cannot conveniently be examined in court," as required by Rule
1006. Further, the underlying materials on which the summary
evidence was based were admissible in evidence pursuant to Fed. R.
Evid. 803(6), as they consisted of attendance records kept in the
course of the Municipality's regularly conducted business,
according to a regular procedure, and for a routine business
purpose. See United States v. Davis, 261 F.3d 1, 42 n.37 (1st Cir.
2001) (noting that for summary evidence to be admissible, the
materials on which it is based also must be admissible in
evidence); see also United States v. Loney, 959 F.2d 1332, 1341
(5th Cir. 1992).
Colón has two main arguments as to why the district court
should not have considered the summary charts: (1) the summary
graphs were never produced to Colón during the discovery process;
and (2) an appropriate foundation to the charts was not properly
laid because the individual who prepared the charts (i) was never
announced as a witness in the case, (ii) prepared the charts in
anticipation of litigation, and (iii) was a paralegal who lacked
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the requisite expertise to testify in support of their admission.
Colón's arguments are non-starters.13
Regarding Colón's first argument, Rule 1006 provides that
only the underlying documents, not the summaries themselves, must
be produced to the opposing party. See Fed. R. Evid. 1006 ("The
originals [of the contents of the writings], or duplicates, shall
be made available for examination or copying, or both, by other
parties at reasonable time and place."). The circuits recognize
this well-settled principle. Air Safety, Inc. v. Roman Catholic
Archbishop of Boston, 94 F.3d 1, 7 & n.14 (1st Cir. 1996); see also
United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991) ("The
13
Colón also argues that because the paralegal represented in her
affidavit that she had interviewed Mercedes Casanova ("Casanova"),
a Municipality office clerk, when preparing the attendance
summaries, and because she incorporated Casanova's statements into
her affidavit, the district court should not have admitted the
summary charts into evidence. It seems clear that the paralegal's
interview of Casanova was part and parcel of her methodology for
organizing the numerous attendance records in an accurate manner.
Thus, if Colón challenges the means used by the paralegal in
preparing the summary charts, we reject this as a valid hearsay
objection. If Colón wanted to challenge the exhibits' substance,
she could have submitted evidence countering their content.
If Colón challenges the court's admission of the paralegal's
affidavit on the grounds that it contained hearsay, we still find
no merit to this argument. The statements contained in the
paralegal's affidavit are copied verbatim from Casanova's affidavit
-- also submitted to the court -- in which she, as the underlying
records' custodian, confirmed the reliability of the business
records and the accuracy of the summary reports. Even if Colón's
hearsay argument could be deemed to have legs, any error in
admitting the summary exhibits was harmless, given that the
underlying evidence on which the exhibits were based was still
admissible, and given that Casanova's statements also were still
admissible through her custodian affidavit.
-22-
language of [Rule 1006] . . . simply requires that the [original
voluminous] material be made available to the other party.");
Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985)
(Rule 1006 requires that "only the underlying documents, and not
the summaries, must be made available to the opposing party").
Thus, Colón's first argument as to the summary charts is incorrect:
the Municipality had no obligation to provide the charts to Colón.
Turning to Colón's multi-faceted second argument, we
first note that the paralegal who prepared the charts was announced
to Colón. The same day on which the Municipality submitted its
exhibits in support of its summary judgment motion, September 1,
2009, it also submitted the name and position of the paralegal who
prepared the summary charts. Thus, Colón had ample notice of the
paralegal's identity and position, her role in relation to the
chart preparation, and the likelihood that she could serve as a
witness at trial. See United States v. Caballero, 277 F.3d 1235,
1247 (10th Cir. 2002) (finding that testimony from witness who
summarized business records "was not a surprise to defendants who
had been notified of the witnesses and the substance of their
testimony during the pretrial phase").
Second, the district court specifically acknowledged that
the summary charts were prepared in anticipation of litigation, and
factored this into its consideration, stating:
The Court understands that the summary
materials were prepared by the Municipality's
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counsel for trial purposes and will consider
the credibility and weight of the prepared
attendance charts and graphs with due
knowledge of that and of the fact that the
paralegal worked only with the documents
available to her. For that reason, the Court
views the percentages of attendance as
approximations.
Colón-Fontánez, 671 F. Supp. 2d at 312 n.15 (emphasis added);
Kestenbaum v. Falstaff Brewing Corp., 575 F.2d 564, 575-76 (5th
Cir. 1978) (court rejected defendant's objection to summary
exhibits on grounds that they had been prepared in anticipation of
litigation because summary was offered under and complied with Fed.
R. Evid. 1006 and underlying records were made available to
opposing counsel).
Third, for summary evidence to be admitted into court,
there must be, like all evidence, a proper foundation laid for its
admission. In the context of a summary exhibit, the proponent of
the exhibit "should present the testimony of the witness who
supervised its preparation." United States v. Bray, 139 F.3d 1104,
1110 (6th Cir. 1998). Here, the Municipality offered the testimony
of the paralegal who prepared the exhibits summarizing Colón's
attendance record. The fact that the paralegal could testify as to
her method of preparing and summarizing the exhibits does not an
instant expert of her make. See United States v. Milkiewicz, 470
F.3d 390, 401 (1st Cir. 2006) (finding no merit to appellant's
argument that witness who prepared summary exhibits lacked the
expertise to summarize the financial information represented in the
-24-
charts, and noting that "creating summaries of the data took
patience but not expertise" (emphasis added)); see also S.E.C. v.
Franklin, 265 F. App'x 644, 646 (9th Cir. 2008) (finding "no error
in allowing the preparer of the [summary exhibits] to testify
because no expert opinions or conclusions were offered") (citation
omitted); Caballero, 277 F.3d at 1247 (noting that witnesses who
"summarized business records and client lists and presented them in
condensed form . . . expressed neither a lay nor an expert
opinion"). Moreover, the fact that she was a paralegal employed by
defendants' counsel, and not by the Municipality itself, does not,
in this case, affect the admissibility of the charts. See Coates,
756 F.2d at 550 (finding that court properly admitted summary
evidence prepared by a paralegal employed by defendants' counsel
because underlying records consisted of memoranda memorializing
employee performance prepared in the regular course of defendant's
business and were prepared in a trustworthy manner).
Further, Colón's argument that the paralegal was not
qualified to review and analyze Colón's attendance records holds
little force. As the district court noted, "[t]he sworn statement
of the paralegal who prepared the summary charts and graphs goes
into great detail about the documents relied upon and methodology
used to develop the materials submitted to the Court." Colón-
Fontánez, 671 F. Supp. 2d at 312 n.15. Colón offers no argument or
explanation as to what qualifications or expertise should have been
-25-
required of the preparer of her attendance record charts, nor does
she ever contest the content of the summary charts. We thus fail
to see how the district court's admission of the paralegal's
summary charts constituted an abuse of discretion warranting
reversal. See Fraser v. Major League Soccer, LLC, 284 F.3d 47, 67
(1st Cir. 2002) (noting that "[i]t is hard to imagine an issue on
which a trial judge enjoys more discretion than as to whether
summary exhibits will be helpful").
In sum, we find no error in how the district court
handled the summary exhibits.
C. ADA Reasonable Accommodation Claim
Colón contends the district court erred in dismissing her
reasonable accommodation claim under the ADA by concluding that she
was not a "qualified individual." The Municipality responds that
the district court properly determined that Colón was not a
qualified individual under the ADA because Colón failed to satisfy
an essential job function, attendance.
1. Overview of an ADA Claim
The ADA prohibits covered employers from discriminating
against a qualified individual with a disability. 42 U.S.C.
§ 12112(a). A qualified individual is one "who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires."
Id. § 12111(8). Discrimination under the ADA includes "not making
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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 accommodation
would impose an undue hardship on the operation of the business."
Id. § 12112(b)(5)(A).
To establish a claim under the ADA, a plaintiff must
prove three factors by a preponderance of the evidence: (1) she was
disabled within the meaning of the ADA; (2) she was qualified to
perform the essential functions of the job, either with or without
reasonable accommodation; and (3) the employer took an adverse
employment action against her because of the alleged disability.
Carroll, 294 F.3d at 237; see also Ríos-Jiménez v. Principi, 520
F.3d 31, 41 (1st Cir. 2008). Because we find that Colón failed to
establish the second element of an ADA claim, i.e., show that she
was a qualified individual under the ADA, we limit our analysis to
this factor.14
2. Qualified Individual: Two-Part Analysis
Whether an individual is qualified under the ADA is a
two-step analysis. See 29 C.F.R. § 1630.2(m). The employee bears
the burden to show, first, that she possesses the requisite skill,
experience, education, and other job-related requirements for the
position, and second, that she is able to perform the position's
14
The parties on appeal likewise limited their arguments solely
to the issue of whether Colón constituted a qualified individual
under the ADA.
-27-
essential functions with or without reasonable accommodation.
García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st
Cir. 2000). We address each in turn.
Construing the record in the light most favorable to the
nonmovant, Colón satisfies the first prong. The evidence shows
multiple work performance evaluations of Colón in which the
reviewer observed that Colón met or exceeded performance levels
when present at work. For instance, Colón received high marks on
her 1991-1992 and 1995-1996 work performance evaluations. Her
evaluations from 2001-2005 all described Colón, among other
complimentary descriptions, as a responsible, diligent, efficient,
and positive worker who contributed to the goals of the office.
These same evaluations from early to mid-2000s also marked Colón as
either "good" or "superior" in her performance levels. One of
Colón's supervisors, Julia Lanzó, described Colón's work
performance as "excellent." Based on these facts, a factfinder
reasonably could determine that Colón possessed the requisite
skill, experience, and job-related requirements for the position of
Auction Officer.
However, our "qualified individual" inquiry does not end
with an evaluation of the quality of Colón's work performance. The
more pertinent question is whether Colón established that she was
able to perform her position's essential functions without
reasonable accommodation, "and if not, whether 'any reasonable
-28-
accommodation by her employer would allow her to do so.'" Mulloy,
460 F.3d at 147 (quoting Phelps v. Optima Health, Inc., 251 F.3d
21, 25 (1st Cir. 2001)).
An essential function is one that "bear[s] more than a
marginal relationship to the job at issue." Chandler v. City of
Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993). It is a "fundamental
job duty . . . [that] can extend beyond 'an employee's technical
skills and experience.'" Calero-Cerezo v. U.S. Dep't of Justice,
355 F.3d 6, 22 (1st Cir. 2004) (quoting Ward v. Mass. Health
Research Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000)) (internal
quotation marks omitted). This Court -- as well as the majority of
circuit courts -- has recognized that "attendance is an essential
function of any job."15 Ríos-Jiménez, 520 F.3d at 42; see also
15
Mulloy, 460 F.3d at 152 (finding that employee's "physical
presence was an essential function of his job"); see also
Vandenbroek v. PSEG Power CT LLC, 356 F. App'x 457, 460 (2d Cir.
2009) (noting that "reliable attendance . . . was an essential
function" of an employee's position); Miller v. Univ. of Pittsburgh
Med. Ctr., 350 F. App'x 727, 729 (3d Cir. 2009) (noting that
"[a]ttendance can constitute an essential function under the ADA");
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418-19 (6th Cir.
2004) (attendance can be an essential function of a position;
excessive absenteeism rendered employee unqualified for his
position); Mason v. Avaya Commc'ns, Inc., 357 F.3d 1114, 1122 (10th
Cir. 2004) (finding that district court "properly held [employee's]
physical attendance at [work] was an essential function of [her]
position"); Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1306
(11th Cir. 2000) ("[J]ob presence . . . has been held to be an
essential function of a job."); Waggoner v. Olin Corp., 169 F.3d
481, 483, 485 (7th Cir. 1999) (stating that "an employee who does
not come to work cannot perform the essential functions of his job"
(quoting Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir.
1998))) (internal quotation marks omitted); Browning v. Liberty
Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir. 1999) ("[I]t is
-29-
Mulloy, 460 F.3d at 152. On these facts, it is clear that regular
attendance was an essential function of Colón's job. Indeed, her
job description, municipal regulation, and her supervisors'
testimony confirm that physical presence at her job was an
understood expectation and requirement. The record reveals that
Colón cannot show she met this essential function.
First, the same performance evaluations that Colón
contends the district court did not properly consider in evaluating
her work performance repeatedly note that, regardless of her
overall work performance, attendance was a continued area of needed
improvement for Colón.
Second, the record shows that Colón's absenteeism was
long-established, dating well before her 2005 fibromyalgia
diagnosis. A review of this evidence shows that in 1992, the
Municipality approved one of Colón's requests for the advancement
of sick leave (eighteen days), but denied another request because
Colón's attendance record showed her to be "frequently absent from
[her] job, presenting a pattern debt on account of sick leave." In
1993, Colón was absent approximately twenty percent of the time she
axiomatic that in order for [an employee] to show that she could
perform the essential functions of her job, she must show that she
is at least able to show up for work."); Hypes ex rel. Hypes v.
First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998) ("[R]egular
attendance is an essential function of most jobs."); Tyndall v.
Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994)
("An employee who cannot meet the attendance
requirements . . . cannot be considered a 'qualified' individual
protected by the ADA.").
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was scheduled to work, and in 1994, approximately fifty-nine
percent of the time. From January 31, 1995 through April 25, 1995,
Colón, having exhausted all of her leaves, was on leave without
pay. From at least May 16, 1996 through August 15, 1996, Colón was
on leave because of a foot injury. From November 15, 1996 through
February 18, 1997, Colón again was on leave without pay. In 2000,
Colón was absent approximately twenty-three percent of the time she
was scheduled to work; in 2001, approximately twenty-five percent
of the time; in 2002, approximately twenty-one percent of the time;
in 2003, approximately twenty-five percent of the time; in 2004,
approximately nineteen percent of the time; and in 2005 -- the year
in which Colón was diagnosed with fibromyalgia -- she was absent
approximately thirty percent of her scheduled work time.
Third, the record does not support Colón's assertion
that, because the Municipality never advised her of any
consequences that might be incurred from her absences, attendance
cannot be deemed to have been an essential function of her
position. The record suggests otherwise.
An internal document describing Colón's position
establishes that physical attendance at work was a necessary aspect
of her job. Auction papers could not be removed from the office,
and Colón was required, among other duties, to draft bid notices,
submit bid proposals for recommendations, submit recommendations to
the Board, attend openings and holdings of bids, direct
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administrative work, and communicate with other departments
regarding bid matters or status, all of which required her physical
presence in the office. Indeed, Colón notably has never argued
that she could perform such duties from home.
Further, the Municipality's "Manual Regarding Work
Schedule, Attendance Registry, Accrual and Use of Leave" expressly
provides that the Municipality may take disciplinary measures if an
employee violates attendance norms by being frequently absent from
work. The Municipality's policies also establish that employees
are expected to attend work regularly and punctually. Lastly, the
evidence shows that Colón received documentation on numerous
occasions from the Municipality as of at least 1992 advising her of
her leave balance (or exhaustion thereof); reminding her of the
Municipality's Personnel Regulations on her duty to comply with
regular and punctual attendance; informing her of docked pay due to
overpayment after a period of unpaid leave; and evaluating her
attendance as unsatisfactory and in need of improvement.16
16
In brief: (1) on July 11, 1994, Colón received a letter from the
Municipality informing her that, as of June 30, 1994, she had
"exhausted the total regular vacations" and her pay would be
discounted for time owed, and reminding her of the Municipality's
attendance and punctuality policies; (2) on September 29, 1995, the
Municipality sent Colón a letter informing her that as of
September 30, 1995, she had no remaining leave balance, that if she
continued to be absent, the Municipality would have to withhold her
paycheck, and that she had a continuing obligation to "comply with
established work schedule;" (3) on March 13, 1997, the Municipality
discounted Colón's salary because she "improperly collected a check
for the first bimonthly pay period of November, 1996;" (4) on
February 15, 2000, the Municipality informed Colón that because she
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Fourth, Colón does not deny her consistent lack of
attendance throughout her employment. Instead, she argues that it
is not relevant for two reasons: (1) because the court's ADA
analysis must be made as of the date of the challenged employment
decision, which was 2006 (when she requested and was denied a
reserved parking spot); and (2) because a lack of available parking
spaces, not her absenteeism, was the reason for which the
Municipality denied her a reserved parking space. Colón's
arguments are incorrect.
did not meet the required leave balance, she would be removed from
direct deposit, and if she were absent from work again, she would
not receive her next paycheck; that same letter updated Colón as to
the Municipality's new attendance system pursuant to which any days
owed by an employee would be discounted from her salary instantly,
and reminded her of the importance of regularity and punctuality in
attendance; (5) on May 25, 2000, the Municipality sent Colón a
letter informing her that as of April 2000, the Municipality was
going to deduct owed leave days from her salary, and reminding her
of the Municipality's attendance policies; (6) on June 10, 2005,
the Municipality sent Colón a letter advising her that her leave
balance was getting low and that if she exceeded it, the
Municipality would have to deduct from her paycheck; the letter
also reminded Colón of the Municipality's attendance policies; (7)
on August 12, 2005, the Municipality sent a letter to Colón citing
an Executive Order regarding employees' obligation to comply with
attendance procedures, and informing her that as of July 2005, her
leave balance was low and money would be deducted from her paycheck
if she exceeded it; (8) on September 9, 2008, the Municipality sent
Colón a memorandum in which the Municipality's attendance protocols
were set forth, and stating that as of August 31, 2008, she had
exhausted her regular leave and any overpayment would be deducted
from subsequent paychecks; and (9) on October 10, 2008, Colón
received a letter informing her that she had incurred thirty-two
absences and four "tardiness events" over a two month period, and
reminding her of the importance of work attendance.
-33-
Colón's pattern of absenteeism is relevant for purposes
of assessing whether she is a qualified individual under the ADA,
and this determination, as previously stated, turns on whether
Colón can establish that she was able to perform her position's
essential functions with or without reasonable accommodation. The
record, both pre-dating and post-dating her 2005 diagnosis, makes
overwhelmingly clear that Colón could not satisfy regular
attendance requirements.
Moreover, and without addressing the reasonableness of
the requested accommodation at issue, it is questionable whether
Colón's ability to perform her position's essential function of
attendance would have improved with the granting of a reserved
parking space. The evidence shows the Municipality made extensive
reasonable accommodations for Colón throughout her years of
employment without sanction or recrimination, including: allowing
Colón to take sick leaves; extending the duration of already
granted sick leaves; authorizing her to transfer leave balances
from co-workers to her own exhausted balance; assigning her an
assistant, both to help with work coverage and to ensure that work
would not be disrupted during Colón's unpredictable absences; and
offering her the use of handicapped spots with the appropriate
identification card. None of these accommodations led to any
improvement in Colón's attendance levels.
-34-
Thus, regardless of Colón's noted skills or experience,
her extensive absenteeism rendered her unqualified to perform her
position's functions, and this absenteeism recurred even with the
Municipality's various reasonable accommodations over the years.
See Matzo v. Postmaster Gen., 685 F. Supp. 260, 263 (D. D.C. 1987),
aff'd, 861 F.2d 1290 (D.C. Cir. 1988) (holding that a secretary's
poor attendance record rendered her unqualified for her position,
even though her skills, experience, and education were
"unexceptionable" and coupled with "uniformly favorable performance
appraisals"). For these reasons, we hold that Colón was not a
"qualified individual" under the ADA. Thus, her discrimination
claim fails.
D. Allegations of Retaliation17
Case law recognizes that an ADA plaintiff need not
succeed on a disability discrimination claim in order to assert a
claim for retaliation. See Soileau v. Guilford of Me., Inc., 105
F.3d 12, 16 (1st Cir. 1997). For Colón to establish a retaliation
claim, she must show that: (1) she was engaged in protected
17
Colón claims the district court committed reversible error when
it stated it would give each alleged retaliatory act the "minimal
attention each deserve[d]." Colón-Fontánez, 671 F. Supp. 2d at 332
n.41. The district court noted that Colón failed to support each
of her listed retaliatory acts in her opposition motion with any
immediate legal analysis or case law citation, instead providing a
general discussion following the listed acts. Because the court's
analysis makes clear that it thoroughly considered each of Colón's
listed acts and relevant case law, we find no error, let alone an
error warranting reversal. See id. at 332-36.
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conduct; (2) suffered an adverse employment action; and (3) there
was a causal connection between the protected conduct and the
adverse action. Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 19
(1st Cir. 2006); see also Wright v. CompUSA, Inc., 352 F.3d 472,
478 (1st Cir. 2003).
The district court found, and we agree, that Colón meets
the first requirement. Colón requested reasonable accommodation
for her alleged disability in the form of a reserved parking space
on October 24, 2006. Colón followed up on her request on or about
November 1, 2006. On November 2, 2006, she was informed that a
reserved parking spot could not be assigned to her.
The Municipality does not dispute that Colón engaged in
protected activity. Instead, it contests Colón's ability to
establish the second and third factors of a retaliation claim,
i.e., Colón cannot show she suffered an adverse employment action
that both caused her material harm and is linked to her request for
a parking spot.
To establish an adverse employment action, Colón must
show that "a reasonable employee would have found the challenged
action materially adverse, 'which in this context means it well
might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzáles, 438 F.3d
1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted).
-36-
For retaliatory action to be material, it must produce "a
significant, not trivial, harm," Carmona-Rivera, 464 F.3d at 20;
actions like "petty slights, minor annoyances, and simple lack of
good manners will not [normally] create such deterrence."
Burlington Northern, 548 U.S. at 68. However, "demotions,
disadvantageous transfers or assignments, refusals to promote,
unwarranted negative job evaluations, and toleration of harassment
by other employees" may constitute adverse employment action,
subject to the facts of a particular case. Hernández-Torres v.
Intercont'l Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998); see
also Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (noting
that adverse action determination requires a case-by-case inquiry).
For causality to be established, the plaintiff must show
a nexus between the protected conduct and the alleged retaliatory
act. Wright, 352 F.3d at 478; see also Tobin v. Liberty Mut. Ins.
Co., 433 F.3d 100, 104 (1st Cir. 2005) (noting that to establish a
prima facie case of retaliation, a plaintiff must show that the
defendant "took an adverse employment action against him because
of, in whole or in part, his protected [conduct]"). "One way of
showing causation is by establishing that the employer's knowledge
of the protected activity was close in time to the employer's
adverse action." Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.
1994).
-37-
We address each of Colón's alleged retaliatory acts in
turn, relying on her categorization of the acts on appeal and
applying an objective standard.18 See Burlington Northern, 548 U.S.
at 68-69; Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st
Cir. 2010) (test for retaliation is "objective" and "should be
judged from the perspective of a reasonable person in the
plaintiff's position, considering all the circumstances") (quoting
Burlington Northern, 548 U.S. at 71) (internal quotation marks
omitted).
1. Temporary Removal of Work Equipment
Colón, relying on the testimony of co-worker Adela Otero,
asserts the Municipality eliminated her "essential working tools"
in retaliation for her October 2006 request for a parking spot.
Otero testified in her deposition that sometime after Colón
returned to work following a health-related absence (unclear from
the record as to when), Colón had to work without a telephone for
approximately two to three months. Otero also testified that the
18
Colón argues that the district court's individual evaluation of
her alleged retaliatory acts was improper because it should have
evaluated the acts "collectively as a whole." A review of Colón's
opposition motion makes clear that she did not specify whether she
wanted the court to consider each of her alleged retaliatory acts
separately or collectively. See Billings v. Town of Grafton, 515
F.3d 39, 54 n.13 (1st Cir. 2008) (noting that because plaintiff
"has not presented an argument about the collective effect . . .,
we have considered the alleged acts of retaliation independently").
Because Colón presented no argument, below or on appeal, as to the
collective effect of the alleged acts, we find no error in the
court's individual assessment of each act.
-38-
Municipality failed to provide Colón with tools with which to carry
out her work (also unclear as to when), and in 2008, following a
health-related absence, Colón's computer was taken away for several
weeks, requiring her to complete all work manually.
Colón's supervisor, Rodríguez, testified that no tools
were withdrawn from a worker's desk unless it was for short periods
of time and for purposes of repair, such as an out-of-order phone
or malfunctioning computer. Otero's testimony does not contradict
Rodríguez's assertions. Otero testified that Colón "was without a
computer and then they were cleaning the machines . . . ." Colón
argues the district court improperly inferred from this testimony
that employee work equipment sometimes was removed for the overall
maintenance purpose of cleaning. We disagree.
The record shows that Otero's statement was in response
to the question, "you say that when [Colón returned to work in
2008], that's when she was without a computer?" Otero's testimony
directly links the removal of Colón's equipment to the
Municipality's maintenance practices. Rodríguez's testimony
further compliments and clarifies Otero's testimony. And both
testimonies establish that any such removal of Colón's office
equipment was temporary.
Additionally, even if the record did not clearly show a
non-retaliatory purpose for the removal of Colón's office
equipment, Colón offers no evidence, aside from Otero's testimony,
-39-
showing that any removal of her work equipment was motivated by
retaliatory intent. See Randlett v. Shalala, 118 F.3d 857, 862
(1st Cir. 1997) (stating that for plaintiff to prevail on summary
judgment, she must show that any alleged adverse action was "taken
for the purpose of retaliating" and "point to some evidence of
retaliation") (emphasis in original). At most, Colón asserts
"there is no evidence that prior to [her] request for reasonable
accommodation, her computer and telephone were taken away for
months for cleaning purposes," and that the "elimination of [her]
working tools were part of the pattern of retaliatory acts against
her." This is insufficient for purposes of establishing a genuine
issue of material fact. See Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) ("Not every discrepancy in the proof is
enough to forestall a properly supported motion for summary
judgment . . . . On issues where the nommovant bears the ultimate
burden of proof, he must present definite, competent evidence.").
2. Withholding of Paychecks
Colón submits that the Municipality, in retaliation for
her accommodation request, withheld her paychecks for four pay
periods, including the months of July and August 2007. Colón does
not provide specific dates for when her re-deposited or refunded
checks were issued, or when she actually received her reimbursed or
refunded payments; she instead asserts generally that she was not
paid in July or August 2007.
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In contrast, the Municipality provided evidence --
consisting of letters between the Municipality and Colón, letters
between the human resources and executive departments, letters
between the various finance offices, data processing sheets, and
various refund notices -- supporting each instance when Colón's
paychecks were delayed, withheld, docked, or otherwise irregular.
The Municipality also proffered an email communication in which
Colón contacted Municipal Secretary Alicea on August 29, 2007,
stating she had not received any payroll payment since July 20,
2007; Alicea forwarded Colón's email that same day to Human
Resources Director Antonio Alvarez Torres stating, "I request your
help in processing this case promptly;" that same day, the
Municipality issued a check to Colón for $328.51.
The record additionally shows that the Municipality
issued fourteen payroll checks to Colón between May 31, 2007 and
December 21, 2007, all of which were signed and cashed. Thus,
although Colón contests the Municipality's position that any
withheld, docked, or delayed paychecks were paid and/or justifiably
attributable to days owed or insufficient remaining sick or annual
leave, the evidence clearly shows otherwise.
Colón raises additional arguments. Colón claims the
district court failed to consider evidence showing that other
employees who previously owed days or exhausted their leave balance
still have received their paycheck or not suffered as long a delay
-41-
in receiving their reimbursement, all of which she asserts is
indicative of the Municipality's retaliatory intent in withholding
or delaying her paychecks.
The record shows the district court did in fact consider
such evidence, specifically, the testimony of employee Adela Otero,
an Administrative Officer II for the Municipality, who testified
that other employees with no remaining leave balance received
refund checks whereas Colón allegedly did not. Colón-Fontánez, 671
F. Supp. 2d at 321. Further, the record does not support the
contention that Colón failed to receive payment, whether in the
form of refund checks or otherwise. Thus, we do not find this
testimony to be sufficient for purposes of establishing a genuine
issue of material fact as to retaliation.
Colón also asserts that the Municipality's "decision to
withhold plaintiff's paycheck was discriminatory and in retaliation
for Colón's decision to request reasonable accommodation." We have
two responses.
First, Colón offers no evidence showing retaliatory
intent associated with the delay in payment, or evidence
establishing that the delay exceeded that attributable to general
workplace bureaucracy or administrative processing. Carmona-Rivera,
464 F.3d at 20. At most, Colón asserts that she was the only
employee who suffered such delays. In testimony, however, Colón
conceded that other co-workers also had checks withheld for at
-42-
least a week's period, thus weakening any alleged retaliatory
intent.
Second, Colón offers no evidence linking the withheld
2007 payments to her 2006 parking spot request. Randlett, 118 F.3d
at 862 ("To make out a retaliation claim requires not only an
adverse employment action and previously protected conduct, but
also a colorable showing that 'a causal connection existed between
the protected conduct and the adverse action.'" (quoting Fennell v.
First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996))). The
most she offers is the unsupported assertion that in all years
prior to her 2006 parking spot request, she never went several pay
periods without payment, whereas months after her accommodation
request, she did.
The record shows the Municipality customarily docked her
pay, or sent letters indicating a reduction in a subsequent
paycheck, well before Colón's 2006 parking request. Furthermore,
the contested withheld payments date from summer 2007, well over
seven months after Colón's accommodation request; this is
insufficient for purposes of establishing causality. See Calero-
Cerezo, 355 F.3d at 25 (noting that "[t]hree and four month periods
have been held insufficient to establish a causal connection based
on temporal proximity").
Because there is no evidence in the record from which a
reasonable factfinder could conclude the alleged payment delays
-43-
resulted from either intentional discrimination or retaliatory
behavior, Colón's claim as to this alleged retaliatory act fails.
3. Changes in Colón's Work Schedule
Colón claims that on February 1, 2007 she sent a request
to Rodríguez to make a change in her work schedule so that Colón
could attend medical appointments; because Rodríguez never answered
Colón's request, she lost the balance of her sick/vacation leaves,
which constituted a retaliatory act for Colón's 2006 parking spot
request. We find no merit to Colón's argument.
Colón testified that she never followed up with Rodríguez
following her initial submission of the work change request.
Specifically, the testimony provided:
Q: Okay. Then you also told me and
correct me if I'm wrong, that you never did
that, you never followed up. You sent an
electronic mail and did not give any follow up
of any kind?
A: Well, I didn't follow up . . . .
App. at 287.
This evidence, that Rodríguez simply never responded to
what likely was one of numerous emails received over the course of
a month in her supervisory position (and indeed, what has proved to
be one of Colón's various requests for accommodation) is not
sufficient for purposes of establishing a causal connection to her
parking spot request. See Kosereis v. Rhode Island, 331 F.3d 207,
217 (1st Cir. 2003) (affirming district court's grant of summary
-44-
judgment on plaintiff's retaliation claim where plaintiff failed to
show causal connection between the protected conduct and alleged
retaliatory act).
It also is not sufficient to show retaliatory intent,
particularly where the evidence shows that, outside of this
isolated incident, the Municipality made repeated efforts to
accommodate Colón's absences due to her health over the course of
nearly two decades. Carmona-Rivera, 464 F.3d at 20; Soileau, 105
F.3d at 17 ("Evidence that an employer willingly granted an
employee's request for an accommodation . . . militate[s] against
making an inference of retaliation . . . .").
Lastly, Colón admitted in her deposition that the
Municipality subsequently approved a change in her work schedule in
March 2008, permitting her to attend her medical appointments
without affecting her leave balance. Thus, the record does not
show Colón materially suffered on account of her accommodation
request. Colón's failure to proffer evidence showing significant
harm or retaliatory intent is detrimental to her claim that
Rodríguez's failure to respond constituted retaliation.
4. Delayed Approval of Outlook Computer Training
Colón argues that Rodríguez's delayed approval of her
request to participate in a computer training workshop constituted
an adverse employment action. Colón fails to show how any delay
-45-
was intentional, material, or causally connected to her request for
a parking spot.
Colón testified that she submitted her request for the
September 11, 2007 training on August 23, 2007, but that she never
followed up with Rodríguez as to the status of her request.
Although Colón stated that she believed any follow-up with
Rodríguez would have been futile because Rodríguez refused to meet
with her, we do not see any evidence indicating intentional delay.
See Carmona-Rivera, 404 F.3d at 20 (finding that district court
properly granted summary judgment on retaliation claim because
plaintiff "failed to provide any evidence of a retaliatory intent
associated with the delay in implementing her requests, or any
evidence which shows that the delay was anything beyond that
inherent in the workings of [plaintiff's workplace] bureaucracy").
Even construing the record in Colón's favor as to
intentional delay, her claim still fails. To establish an adverse
employment action, Colón must show she suffered material harm due
to the delay. See id. The most that Colón alleges is that the
lack of computer training would "affect[] her progress and
evolution as a professional." This conclusory allegation is not
sufficient for purposes of establishing a "significant, not
trivial, harm" that rises above mere "inconvenience." Id.; Ingram
v. Brink's, Inc., 414 F.3d 222, 229 (1st Cir. 2005) (stating that
-46-
"summary judgment cannot be defeated by relying on improbable
inferences, conclusory allegations, or rank speculation").
Additionally, even if we were to determine that Colón
showed material harm, she still bears the burden of showing that
the alleged adverse action, the approval delay, was "taken for the
purpose of retaliating." Randlett, 118 F.3d at 862 (emphasis in
original). Colón points us to no evidence showing that Rodríguez
delayed her September 2007 approval of Colón's participation in the
workshop because of Colón's October 2006 request for a parking
spot, nearly a year after the contested reasonable accommodation.
The alleged approval delay occurred approximately eleven months
following Colón's reasonable accommodation request; this is not
sufficient to establish causality between the two events. See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).
5. Negative Memorandum Against Colón
Colón contends the district court failed to properly
consider her next alleged retaliatory act, a requested disciplinary
memorandum. In a sworn statement, Colón's co-worker Ruth Carmona
stated that Rodríguez asked "for my advise [sic] in order to issue
a disciplinary memo against Nitza Colón but I refused." The
district court noted that Carmona's sworn statement was undated.
Colón-Fontánez, 671 F. Supp. 2d at 333. It further noted a lack of
specificity in Carmona's testimony as to when Rodríguez allegedly
requested the disciplinary memorandum of Carmona. Id.
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Colón asserts that specificity, at least as to
Rodríguez's alleged instruction, was established from Carmona's
statement that the work environment towards Colón became hostile
"[a]fter Nitza Colón requested a reasonable accommodation," and
that "[i]n [sic] one occasion, the Director asked me" to issue a
disciplinary memorandum. We agree with the district court that
these broadly phrased time estimates are far too general for
purposes of determining when the alleged adverse employment action
occurred.
Moreover, even if we were to determine that causality is
met because the alleged memorandum request occurred close in time
to Colón's accommodation request, see Wyatt, 35 F.3d at 16, Colón
offers no evidence showing that she suffered material harm from
Rodríguez's instruction. See Burlington Northern, 548 U.S. at 68.
Indeed, the record indicates otherwise as no disciplinary
memorandum ever was issued.
6. Elimination of Supervisory Duties
Colón asserts that Rodríguez retaliated against her when
Rodríguez removed Colón's assistant, Yesiree Alemán, from Colón's
supervision, effectively eliminating her supervisory duties. The
record shows that Alemán was assigned to the Auction Department in
2001, with Julia Lanzó acting as her immediate supervisor. In
2004, Rodríguez and Lanzó assigned Alemán to be Colón's assistant
due to her precarious health condition. Though the specific date
-48-
of Alemán's transfer from being -- in Alemán's words -- Colón's
"direct[] and exclusive[]" assistant to an assistant for "anyone
else [including Colón] who needed me in the [department]" is not
clear from the record, both Colón and Alemán's testimony agree that
the transfer occurred sometime in 2007 after Colón's request for a
parking spot.
Construing the record in Colón's favor, we presume she
can establish temporal proximity as to the alleged elimination of
her duties and her 2006 parking space request. We therefore focus
our analysis on whether Colón can show the alleged adverse action
constituted material harm.
Case law acknowledges that a change in an employee's
responsibilities may be sufficient to establish an adverse
employment action. See Blackie, 75 F.3d at 725 (noting a
discharge, demotion, reduction in salary, divestiture of
significant responsibilities, or withholding of recognition may be
sufficient to constitute a materially adverse employment action);
see also Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir.
1991) (stating a "discharge, demotion, or failure to promote" may
adversely affect an employee). This is not the case here.
Colón offers no evidence showing the alleged
"elimination" of her supervisory position rose to the level of
material harm. First, Colón's testimony casts doubt upon the
supervisory nature of her alleged managerial position. Colón
-49-
testified that, although Alemán was her assistant, Colón was not
responsible for evaluating Alemán's performance; rather,
evaluations "were always done by the manager or the director."
Further, the evidence shows that Colón received Alemán as
her assistant on account of her unpredictable yet recurring
absences, not because of any promotion in employee status, raise in
salary, or change in job title. Specifically, both Lanzó and
Alemán testified during deposition that Alemán was assigned to
Colón to ensure there would be no disruption of duties and to
assure that Colón's work would be managed in her absence. Further,
upon the alleged elimination of supervisory duties, Colón suffered
no demotion, salary reduction, position reclassification, or loss
of rank or prominence in her department.
Although Colón generally argues she "suffered the lost
[sic] of respect from her co-workers" and an exacerbation of her
health condition from the elimination of her alleged supervisory
duties, Colón's argument misses the mark. Because Colón failed to
proffer facts showing how Alemán's re-assignment significantly
affected her alleged prior authority, we fail to see how the
transfer constituted a materially adverse action. See Simas v.
First Citizens' Fed. Credit Union, 170 F.3d 37, 50 (1st Cir. 1999)
(noting case law holding that divesting an employee of significant
assignments or substantial responsibilities may be sufficient to
constitute an adverse employment action). As the district court
-50-
noted, the Municipality's assignment of Alemán to Colón sounds like
more of an accommodation than a retaliation, and an employer's act
of accommodation generally "tends to militate against making an
inference of retaliation." Soileau, 105 F.3d at 17.
7. Reassignment of Colón's Duties in the Women's
Affairs Department
Colón asserts as her next retaliatory act Rodríguez's
alleged elimination of her work duties for the Department of
Women's Affairs.19 Alemán testified that in 2007 Rodríguez held a
personnel meeting in which it was declared that Colón would no
longer be in charge of the Department for Women's Integral
Development, and that her work would be reassigned to someone else
in the department. In a sworn statement, Rodríguez asserted,
first, that she regularly did reassignments in the Auction
Department "to get things moving. These reassignments are done
from time to time, in order to meet manpower gaps that the Auction
Department has." Rodríguez noted that the purpose of such
reassignments was to "prevent backlogs" and ensure that all matters
remained current, although she also acknowledged that the
Department of Women's Affairs "seldom" required attention. Second,
Rodríguez stated that her reassignment of Colón's work in this
department was not on account of her health condition; rather, it
19
The record refers to this same department as the Department of
Women's Affairs, the Women's Affair Department, and the Department
of Integral Development of Women. We likewise use these names
interchangeably.
-51-
was "to assist Nitza Colón in meeting her work levels
requirements . . . [and] to give Nitza Colón breathing space so
that she could otherwise manage her absenteeism situation."
Colón's argument as to reassignment parallels her
argument as to the alleged elimination of her supervisory duties,
i.e., Rodríguez eliminated certain work responsibilities of Colón's
following her accommodation request and this constituted
retaliation. Colón's argument holds little water. Colón herself
in testimony estimated that the alleged reassignment of her
departmental duties occurred in November 2007, approximately one
year after her parking space request. As previously set forth, a
near twelve month passage of time between the asserted protected
conduct and alleged adverse action weighs against a finding of
causality. See Calero-Cerezo, 355 F.3d at 25 (stating that three
and four month periods have been held insufficient for purposes of
establishing causality based on temporal proximity).
Moreover, even assuming causality can be established,
Colón articulates no facts showing how the alleged reassignment
caused her significant harm or substantially altered her job
responsibilities. See Blackie, 75 F.3d at 725-26; Simas, 170 F.3d
at 50. Indeed, even though Colón acknowledges Rodríguez's
assertion that the Department of Women's Affairs "rarely produces
work for the Auction Department [and it] does [not] require
significant attention," Colón does not counter it. This weighs
-52-
against a finding that any loss or reassignment of duties in this
area caused Colón significant harm or materially altered her job
responsibilities.20
E. Hostile Work Environment Claim
In addition to her various alleged acts of retaliation,
Colón also asserts that the Municipality retaliated against her by
subjecting her to a hostile work environment. To establish a
hostile work environment, a plaintiff must show that her workplace
was "permeated with discriminatory intimidation, ridicule, and
insult that [was] sufficiently severe or pervasive to alter the
conditions of . . . [his] employment and create an abusive working
environment." Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir.
2006) (alterations in original) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)) (internal quotation mark omitted).
Assessing whether the work environment is hostile or
abusive "must be answered by reference to 'all the circumstances.'"
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002)
(quoting Harris, 510 U.S. at 23). While "'[t]here is no
20
Though not raised on appeal, the record shows that Colón
initially argued as an act of retaliation her supervisor's refusal
to evaluate her following her reasonable accommodation request,
thereby preventing her from advancing in her employment. See Opp'n
Mot. to Summ. J. at 26. Because we generally are not required to
consider arguments that are not raised on appeal, we do not address
the merits of this previously alleged retaliatory act. See Negrón-
Fuentes v. UPS Supply Chain Solutions, 532 F.3d 1, 9 (1st Cir.
2008) (declining to consider argument that was raised in the
district court but "not pressed" on appeal); Kandamar v. Gonzáles,
464 F.3d 65, 72 n.3 (1st Cir. 2006) (same).
-53-
mathematically precise test to determine whether [a plaintiff]
presented sufficient evidence' that she was subjected to a severely
or pervasively hostile work environment," Pomales v. Celulares
Telefónica, Inc., 447 F.3d 79, 83 (1st Cir. 2006) (second
alteration in original) (quoting Kosereis, 331 F.3d at 216), courts
have recognized the following factors, among others, as relevant:
the severity of the conduct; its frequency; and whether it
unreasonably interfered with the victim's work performance. Id.;
see also Ríos-Jiménez, 520 F.3d at 43. We note that our role is
"to 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).
Case law is clear that "'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. Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (citation omitted) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 82) (1998)). Colón's allegations do not
rise to the level of severity or pervasiveness that we have
recognized as indicative of a hostile or abusive work environment.
For instance, Colón alleges that when she would stop by
Rodríguez's office, Rodríguez would refuse to meet with her in
violation of her supervisory duties. Although Rodríguez permitted
-54-
other employees to come and go from her office, Rodríguez avoided
Colón, required Colón to wait, restricted Colón's access to her,
and refused to amicably greet her in general encounters. On one
occasion, Rodríguez threw Colón and a co-worker out of her office,
yelling at them in front of other Municipality employees.
Rodríguez then permitted the witnessing employees to enter her
office without yelling at them. Rodríguez ordered Colón's
assistant, Yesiree Alemán, to return to her desk whenever she tried
to discuss cases or prepare reports with Colón. Rodríguez failed
to take action against various employees who made comments against
Colón. When Colón asked Rodríguez to hold a meeting with her
fellow co-workers to discuss their derogatory comments towards her,
Rodríguez refused the request. Colón's general movements
throughout the office were limited; if she left her desk to go to
the bathroom, Colón's supervisor, or someone designated by her,
would follow her. In 2008, when other co-workers were invited to
participate in a contracts workshop, Colón was not allowed to
participate, even though Colón previously had engaged in such
activities.
While these facts certainly indicate an uncomfortable and
tense working relationship between Colón and Rodríguez, again, they
are not sufficiently severe or pervasive to constitute a hostile
work environment. See generally Rosario v. Dep't of the Army, 607
-55-
F.3d 241 (1st Cir. 2010); Marrero, 304 F.3d 7; O'Rourke v. City of
Providence, 235 F.3d 713 (1st Cir. 2001).
Furthermore, although Rodríguez's interactions with Colón
may be described as brusque and even uncivil, we note that "a
supervisor's unprofessional managerial approach and accompanying
efforts to assert her authority are not the focus of the
discrimination laws." Lee-Crespo v. Schering-Plough Del Caribe,
Inc., 354 F.3d 34, 46-47 (1st Cir. 2003). Even construing the
facts in Colón's favor, as we are required to do, the evidence does
not support a hostile work environment claim. The incidents
described are episodic, but not frequent, in nature; upsetting, but
not severe; mildly humiliating, but not physically threatening.
Id. at 46. Lastly, such acts do not appear to have affected her
overall work performance; in fact Colón, both below and on appeal,
repeatedly has asserted to the contrary. See id.
Colón additionally points to the following evidence as
indicative of a hostile work environment: co-workers told Colón on
several occasions to get on social security or apply for disability
so that she could receive an assured check; called her a
hypochondriac; claimed she was "faking it;" or generally isolated
her from general workplace interactions. Again, while not
questioning the discomfort such workplace interactions produce,
these allegations are not sufficient for establishing an
objectively hostile and abusive work environment. See Suárez v.
-56-
Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000) ("The workplace
is not a cocoon, and those who labor in it are expected to have
reasonably thick skins . . . to survive the ordinary slings and
arrows that workers routinely encounter in a hard, cold world.").21
Because the alleged acts of retaliation here do not rise
to the level of severity or pervasiveness that a reasonable
employee would find to have materially altered the conditions of
her employment such that an abusive work environment was created,
we affirm the district court's grant of summary judgment as to a
hostile work environment claim.
F. District Court's Sua Sponte Dismissal of Colón's Equal
Protection Claim
Colón's remaining argument on appeal is that the district
court improperly dismissed her equal protection claim sua sponte
because the Municipality never moved for its dismissal in its
motion for summary judgment. We begin with Colón's alleged
"claim."
The only reference to an equal protection claim that we
can find in the record is in the jurisdiction section to Colón's
amended complaint, in which she asserts: "Also, the equal
protection clause of the U.S. Constitution is proclaimed." Colón
does not include the claim as a separate cause of action in the
21
Although Colón asserted additional acts below in support of her
hostile work environment claim, she did not raise such acts on
appeal, and we therefore do not address them. See Negrón-Fuentes,
532 F.3d at 9; Kandamar, 464 F.3d at 72 n.3.
-57-
complaint; she does not incorporate it into her other causes of
action; she makes no factual or legal argument in support of this
claim in her amended complaint or other subsequent pleading (or
even on this appeal); and she makes no reference to it in her
opposition to summary judgment motion. See Ruiz-Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 87-88 (1st Cir. 2008) (finding no error
where district court did not review a "fleeting and inadequate"
claim that plaintiff only raised in her complaint's introductory
paragraph, which she did not raise as a separate cause of action,
and to which she pled no supporting facts).
In short, Colón makes a one-sentence, legally and
factually unsupported, emaciated assertion of an equal protection
claim to secure the district court's federal jurisdiction over her
case. We have warned parties before that trial judges are not
"mind readers," and that "[i]f claims are merely insinuated rather
than actually articulated," courts are not required to make
determinations on them. McCoy v. Mass. Inst. of Tech., 950 F.2d
13, 22 (1st Cir. 1991); see also Harriman v. Hancock Cnty., 627
F.3d 22, 28 (1st Cir. 2010) ("It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to do
counsel's work, create the ossature for the argument, and put flesh
on its bones." (quoting United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990))); Paterson-Leitch Co. v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 990 (1st Cir. 1998) (a party has a duty
-58-
"to spell out its arguments squarely and distinctly . . . [instead
of being] allowed to defeat the system by seeding the record with
mysterious references to unpled claims").
Moreover, even if Colón's one sentence claim, bereft of
any legal citation or factual analysis, could be deemed to have
required notice of its potential exposure to the winds of dismissal
for failure to state a justiciable claim -- further notice, of
course, aside from Colón having already sought to amend her
complaint and having fully responded to the Municipality's summary
judgment motion (which sought to effectively remove all of her
listed causes of action from the court's consideration, leaving as
her only potential "claim" on which to prop herself before the
federal court's jurisdiction her alleged equal protection claim) --
"not . . . every sua sponte dismissal entered without prior notice
to the plaintiff automatically must be reversed." González-
González v. United States, 257 F.3d 31, 37 (1st Cir. 2001). "If it
is crystal clear that the plaintiff cannot prevail and that
amending the complaint would be futile, then a sua sponte dismissal
may stand." Id.
Here, the record shows that Colón already was afforded
the opportunity to amend her complaint, into which she planted the
seed of an equal protection claim. But she buried and abandoned
the seed in the complaint's jurisdiction section, failing to
support it with factual or legal arguments, or to even address it
-59-
again -- whether in that pleading or in any other pleading, motion,
or brief. Thus, we cannot see how a subsequent opportunity to
amend would be anything but futile. Colón cannot reap what she has
not sown.
Further, any remand here is unnecessary because Colón's
claim "clearly fail[s] to survive the proper Rule 8(a)(2) notice
pleading standard." Cepero-Rivera v. Fagundo, 414 F.3d 124, 129
(1st Cir. 2005). Rule 8(a)(2) requires that a pleading stating a
claim for relief must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief," Fed. R.
Civ. P. 8(a)(2); however, there must be "sufficient detail in the
complaint to give a defendant fair notice of the claim and the
grounds upon which it rests." Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 8 (1st Cir. 2011). That is, the plain statement must
"possess enough heft to show that the pleader is entitled to
relief," id., and it requires "more than an unadorned, the-
defendant-unlawfully-harmed-me accusation." Sánchez v. Pereira-
Castillo, 590 F.3d 31, 48 (1st Cir. 2009) (quoting Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009)) (internal quotation marks
omitted). Colón's claim here lacks any legal or factual authority
or supportive detail. She cannot bury a blatantly inadequately
pled claim in her complaint on the hope that it might spring to
life like a forgotten Hydra-head upon the court's disposal of all
of her other alleged claims. We therefore find no error in the
-60-
district court's determination not to consider Colón's entirely
unarticulated equal protection claim. See Ruiz-Rivera, 521 F.3d at
87-88.
III. Conclusion
For the reasons stated, we affirm the district court's
grant of summary judgment.
Affirmed.
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