Colon-Fontanez v. Municipality of San Juan

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.

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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.

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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.

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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

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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

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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).

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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

-23-
 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

-26-
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.").

-30-
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

-31-
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

-32-
 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.

-35-
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.

-40-
 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.

-47-
 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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