Sánchez-Rodríguez v. AT & T Mobility Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 10-2177

MIGUEL SÁNCHEZ-RODRÍGUEZ,

Plaintiff, Appellant,

v.

AT&T MOBILITY PUERTO RICO, INC.,

Defendant, Appellee.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Boudin, and Dyk,*
Circuit Judges.

Juan Rafael González-Muñoz, with whom González Muñoz Law
Offices, PSC, María E. Margarida-Franco, and Margarida Franco Law
Office, were on brief for appellant.
Todd J. Shill, with whom John R. Martin, and Rhoads & Sinon
LLP, were on brief for appellee.

March 8, 2012

*
Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-Appellant Miguel

Sánchez-Rodríguez ("Sánchez") appeals the district court's award of

summary judgment to his employer, AT&T Mobility Puerto Rico, Inc.

("AT&T"), on his claims of religious discrimination and retaliation

under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000a-2000e

("Title VII"). Although we disagree with some aspects of the

district court's decision, we conclude that the grant of summary

judgment for AT&T was correct. We further conclude that the

district court did not err in denying Sánchez's request for

additional discovery in response to AT&T's motion for summary

judgment.

I. Background

A. Facts

We recount the undisputed facts to which the parties

stipulated in the district court.

Sánchez was hired by AT&T1 in March of 2000 as an

Installation Technician. In February of 2001, Sánchez transferred

to a Retail Sales Consultant position in the Caguas-Cayey-Humacao-

Fajardo sales region ("Caguas region"), where he sold cellular

telephones and accessories at service kiosks located in shopping

centers. His yearly salary between 2003 and 2006 ranged from

1
According to the parties, Sánchez was initially hired by
Cellular One, which eventually became Cingular, which in turn
became AT&T.

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$23,129.59 to $26,425.47. Sánchez also earned yearly commissions

ranging from $10,653.03 to $18,938.17.

During 2006 and 2007, AT&T staffed three hundred Retail

Sales Consultants throughout Puerto Rico, including over forty in

the Caguas region. Between September 2006 and June 2007, AT&T had

hired over fifty-three Retail Sales Consultants, thirty of whom

were full-time employees. These new hires included ten Retail

Sales Consultants for the Caguas region, of whom five were full-

time employees.

In September of 2006, Sánchez informed his supervisors

and AT&T's Human Resources ("HR") department that he had become a

Seventh Day Adventist. As a Seventh Day Adventist, Sánchez had a

religious obligation to abstain from work on Saturdays and attend

Sabbath services. Therefore, he requested an accommodation in his

work schedule by being allowed to take Saturdays off. In October

of 2006, Sánchez presented a letter from his church confirming and

explaining his religious observance of the Sabbath. On

approximately November 21, 2006, AT&T's HR department sent Sánchez

a letter stating that his position necessitated that he work on

rotating Saturday shifts and that it would be a hardship on AT&T to

grant Sánchez his requested accommodation.

In lieu of a change in his schedule, AT&T offered Sánchez

two different positions that would not require him to work on

Saturdays: Representative 1 for Customer Service ("Rep 1") and

-3-
Business Sales Specialist. The Rep 1 position typically required

Saturday hours, but AT&T determined that it would not be a hardship

to allow Sánchez to take Saturdays off. The Business Sales

Specialist position did not require work on Saturdays or Sundays.

The annual wages for the Rep 1 and Business Sales Specialist

positions were $23,088 and $22,970, respectively. However, neither

position offered the opportunity to earn commissions. Thus,

Sánchez declined both offers, since his income would significantly

decrease.

In early 2007, Sánchez applied for two other positions at

AT&T in Puerto Rico, but was not interviewed for either position.

In February of 2007, Sánchez presented another letter from his

church confirming his observance of the Sabbath. Sánchez also

filed a charge with the Equal Employment Opportunity Commission

("EEOC") office in San Juan, Puerto Rico, alleging religious

discrimination.

In March of 2007, Sánchez informed his supervisor that he

had been trying to find co-workers who were willing to swap shifts

with him and take his Saturday shifts, but that he was unable to do

so. Sánchez stated that he was therefore forced to violate AT&T's

attendance policy by not working his Saturday shifts. Sánchez's

supervisor told him that working Saturdays was a requirement of his

job. Sánchez's supervisor also notified AT&T's HR department about

the situation.

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 On approximately April 5, 2007, AT&T's Director of HR

sent Sánchez a letter. The letter described "working rotating

shifts (including Saturdays)" as an "essential function" of

Sánchez's position. The letter acknowledged that Sánchez had

declined the two positions offered by AT&T because of the reduction

in salary those positions would entail. The letter noted that

Sánchez had continued to miss work on Saturdays, but that no

adverse disciplinary action had been taken for these absences.

However, it warned Sánchez that letting him miss work on Saturdays

"[was] not an option for it undermine[d] the scheduling/attendance

requirements." Therefore, the letter said that AT&T would start

disciplining Sánchez for any additional Saturdays he missed.

The letter then stated:

It is important for the Company to
maintain a neutral scheduling system and not
to burden other employees into working more
than their share of Saturdays, among others.
In an effort to accommodate your necessities
we are going to allow shift swaps with your
co-workers. Be mindful that the Company cannot
impose a shift swap on the employees. It would
be in a voluntary fashion. We shall try this
alternative for a period of two (2) months to
determine whether it is workable or not.

You will need to be active in obtaining
voluntaries. The Company will assist you in
providing the employees schedules; allowing
you to advertise your need for swaps on the
bulleting board and in any other form that you
deem necessary and is acceptable. After the
conclusion of the two (2) months trial period,
we shall meet to discuss the outcome and
whether it gave us the needed results or

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 whether other measures are needed to
accommodate your needs.

There is no evidence in the parties' stipulation or anywhere in the

record that AT&T ever actually gave Sánchez the "employees[']

schedules."

In May of 2007, Sánchez informed the HR department that

he could not find workers to swap shifts with him, and that he

would therefore be absent on Saturdays. In response, that same

month, Sánchez's supervisor placed him on active disciplinary

status. The supervisor also warned Sánchez that further measures,

including termination, would be taken if he continued to miss work

on Saturdays. In the same month, Sánchez's supervisor also sent

him eight emails advising him that his sales figures were below

expectations.

In June of 2007, Sánchez applied for a Retail Sales

Consultant position in Worcester, Massachusetts; Sánchez's

application was rejected on the ground that he "did not meet basic

qualifications" for the position, even though it was the same

position he held in Puerto Rico. That same month, the HR

department emailed Sánchez, again informing him that his absences

would be subject to the attendance policy. Sánchez was asked to

meet with HR to discuss his absenteeism, although the record does

not indicate whether this meeting took place. Finally, on June 20,

2007, Sánchez tendered his letter of resignation, stating, "An

opportunity had showed [sic] up I [sic] which I can have the

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Saturday[;] in addition it represent[s] an opportunity for my

professional growth."

B. Procedural History

On December 26, 2007, Sánchez filed a Complaint against

AT&T in the U.S. District Court for the District of Puerto Rico.

Sánchez alleged religious discrimination in violation of Title VII.

On April 16, 2008, Sánchez filed an Amended Complaint which added

a claim under Title VII that AT&T retaliated against Sánchez for

his February 2007 EEOC complaint.2

The district court issued a Case Management Order ("CMO")

on July 30, 2008. Under the CMO, all discovery in the case had to

be completed by April 30, 2009. The CMO also stated that any

motion requesting an extension of the discovery deadline would have

to be filed "well in advance of the deadline." Counsel for both

sides participated in an Initial Scheduling Conference ("ISC") with

the district court judge on September 26, 2008. The district judge

told the parties to "see if [they] can come up with a Stipulation

of Facts that would permit [them] to file Cross-Motions for Summary

Judgment." However, the judge also told the parties: "In case you

can't come up with a proposed Stipulation of Facts, then let me

know, and then you can proceed with Discovery." In addition, the

court ordered AT&T to provide certain discovery that Sánchez had

2
Sánchez also included various claims under Puerto Rico law, but
those claims are not before us on appeal.

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requested, including information about Sánchez's earnings and about

the salary in the other positions AT&T offered him.

After some additional discovery, but without any

depositions having been taken, the parties filed a Joint Motion

Submitting Stipulation of Facts ("Stipulation") on April 7, 2009.

The Stipulation recounted the facts mentioned in Section I(A),

supra. The parties then filed cross-motions for summary judgment

on April 30, 2009, which was also the discovery deadline the

district court had set. Although Sánchez had never previously

asked for an extension of the discovery deadline, he now asked, in

a footnote at the end of his motion, for additional discovery

regarding AT&T's efforts to accommodate him. AT&T, for its part,

argued that it did reasonably accommodate Sánchez, and pointed to

its offer of other positions and to the April 5, 2007 letter in

which it offered to let Sánchez swap shifts.

AT&T filed its opposition to Sánchez's motion on May 21,

2009, and Sánchez filed his opposition to AT&T's motion the

following day. In his opposition, Sánchez made almost no attempt

to respond to the merits of AT&T's argument. Instead, Sánchez

argued that the case could not be decided on summary judgment

motions at that time. Sánchez contended that AT&T's motion raised

a number of issues of material fact that could not be decided on

the existing record. Therefore, Sánchez requested additional

discovery under Fed. R. Civ. P. 56(f), which permitted a court to

-8-
order further discovery if a party could show that "it cannot

present facts essential to justify its opposition" to a motion for

summary judgment.3

Sánchez attached two exhibits to his opposition. The

first was an affidavit from one of his attorneys asserting that

Sánchez "ha[d] not been able to conduct discovery in order to

obtain the necessary evidence to establish his claim of religious

discrimination." The second was an unsworn declaration from

Sánchez himself (the "Sánchez Affidavit"). In this affidavit,

Sánchez claimed, inter alia, that (1) AT&T had never assisted him

with shift-swapping; and (2) other Retail Sales Specialists had

been granted specific shift assignments for non-religious reasons.

3
At the time the summary judgment motions in this case were
pending, Rule 56(f) provided:

When Affidavits are Unavailable. If a party opposing the
motion shows by affidavit that, for specified reasons, it
cannot present facts essential to justify its opposition,
the court may:

(1) deny the motion;
(2) order a continuance to enable affidavits
to be obtained, depositions to be taken, or
other discovery to be undertaken; or
(3) issue any other just order.

Rule 56 was amended in 2010 in order to "improve the procedures for
presenting and deciding summary judgment motions and to make the
procedures more consistent with those already used in many courts."
Fed. R. Civ. P. 56 advisory committee's note on 2010 amendments.
In the current version, what was subdivision (f) now appears in
slightly modified form in subdivision (d).

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 On June 1, 2009, AT&T moved for leave to file a reply to

Sánchez's opposition to its motion for summary judgment. AT&T's

proposed reply mainly challenged Sánchez's request for additional

discovery under Rule 56(f). The district court denied AT&T's

motion on the same day. However, the court also issued an order

denying additional discovery and stating that the court would

"decide this case on the Stipulated Facts and the briefs filed."

The district court granted AT&T's motion for summary

judgment on August 5, 2010. See Sánchez-Rodríguez v. AT&T

Wireless, 728 F. Supp. 2d 31 (D.P.R. 2010). The district court

noted that it had rejected Sánchez's request for additional

discovery, and then said that it would "rule on the motions for

summary judgment based on the submitted stipulation of facts, as

previously agreed upon by the parties." Id. at 35 (emphasis

added). The court held that because the parties had stipulated

facts, the court could "decide any significant issues of material

fact that [it] discover[ed]." Id. at 38 (quoting Bos. Five Cents

Sav. Bank v. Sec'y of Dep't of Hous. & Urban Dev., 768 F.2d 5, 11

(1st Cir. 1985)).

On Sánchez's Title VII religious discrimination claim,

the court held that even though Sánchez had demonstrated a prima

facie case of discrimination, AT&T had shown either: (1) that it

offered Sánchez a reasonable accommodation, or alternatively, (2)

that accommodating Sánchez would have placed an undue burden on

-10-
AT&T. As stated by the district court, to establish a prima facie

case of religious discrimination, the employee must show that: "(1)

a bona fide religious practice conflicts with an employment

requirement; (2) that he or she brought the practice to the

[employer's] attention; and (3) that the religious practice was the

basis for an adverse employment decision." Id. at 38 (quoting

E.E.O.C. v. Unión Independiente de la Autoridad de Acueductos y

Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2004)). There

was no dispute that Sánchez satisfied the first and second prongs,

but AT&T argued that it took no adverse employment action against

Sánchez. See id. at 39. The district court held that Sánchez

satisfied the third prong because the disciplinary actions that

AT&T took against him starting in May of 2007 were adverse

employment actions. See id. at 39-40.

Once an employee has made out a prima facie case of

discrimination, the employer must show that it offered a reasonable

accommodation or that a reasonable accommodation would be an undue

burden. Unión Independiente, 279 F.3d at 55. The district court

held that the alternate positions that AT&T had offered to Sánchez

were not reasonable accommodations "because [those] positions

offered a steep decrease in earnings." Sánchez-Rodríguez, 728 F.

Supp. 2d at 42. However, the court held that allowing Sánchez to

arrange voluntary shift swaps with other employees was a reasonable

accomodation. Id. at 42-43. Furthermore, assuming arguendo that

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none of AT&T's proposed accommodations were reasonable, the court

held that AT&T had shown that allowing Sánchez to take Saturdays

off would have created an undue hardship for AT&T. Specifically,

the court credited AT&T's assertions that Saturday was a high-

activity day for AT&T and that the company relied on a neutral

scheduling system to avoid burdening employees with a

disproportionate number of Saturday shifts. See id. at 44. The

court therefore dismissed the discrimination claim.

On the retaliation claim, the district court held that

Sánchez had made out a prima facie case of retaliation under Title

VII, but that AT&T had successfully rebutted that case. To

establish a prima facie case of retaliation, an employee must show

that: "(1) he engaged in protected conduct under Title VII; (2) he

experienced an adverse employment action; and (3) a causal

connection exists between the protected conduct and the adverse

employment action." Id. (citing Gu v. Bos. Police Dep't, 312 F.3d

6 (1st Cir. 2002)). The court held that because of the temporal

proximity between Sánchez's EEOC complaint and various subsequent

adverse employment actions -- rejecting Sánchez's applications for

other positions and disciplining him for absenteeism -- Sánchez had

satisfied his initial burden. See id. at 45. This shifted the

burden to AT&T to show that it had a non-discriminatory reason for

its adverse employment actions. Id. However, the court found that

-12-
AT&T had demonstrated non-discriminatory reasons for its actions,

and thus dismissed the retaliation claim. Id.4

Sánchez now appeals the denial of his request for

additional discovery and the grant of summary judgment for AT&T.

AT&T, in addition to arguing that the judgment below should be

upheld, has moved for sanctions against Sánchez and his attorneys

for what AT&T claims are Sánchez's misstatements of the record.

II. Discussion

Sánchez makes two main arguments on appeal. First, he

argues that the district court erred by not granting his request

for additional discovery under Fed. R. Civ. P. 56(f). Second, he

argues that the district court committed procedural and substantive

errors in granting summary judgment to AT&T. We first address the

Rule 56(f) issue. We then address Sánchez's various challenges to

the grant of summary judgment.

A. Standard of Review

We review a district court's denial of a request for

additional discovery under Rule 56(f) -- as it existed in 2009 --

for abuse of discretion. See Mir-Yepez v. Banco Popular de P.R.,

560 F.3d 14, 15 (1st Cir. 2009). Under the abuse of discretion

standard, we will not reverse a district court's discovery order

4
Because the court had dismissed all of Sánchez's federal claims,
it dismissed his Puerto Rico law claims on the ground that it no
longer had supplemental jurisdiction over those claims. See id. at
46.

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unless it appears that the order "was plainly wrong and resulted in

substantial prejudice to the aggrieved party." Universal Commc'n.

Sys. v. Lycos, Inc., 478 F.3d 413, 425 (1st Cir. 2007) (quoting

Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38 (1st

Cir. 2000)).

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

novo, "resolving all evidentiary conflicts and drawing all

reasonable inferences in favor of the nonmoving party." Kuperman

v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011). "Summary judgment is

appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law."

Cortés-Rivera v. Dep't of Corr. & Rehab. of P.R., 626 F.3d 21, 26

(1st Cir. 2010). "[W]e 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). "The nonmovant may defeat a summary

judgment motion by demonstrating, through submissions of

evidentiary quality, that a trialworthy issue persists." Iverson

v. City of Bos., 452 F.3d 94, 98 (1st Cir. 2006) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)). However, "a

conglomeration of conclusory allegations, improbable inferences,

and unsupported speculation is insufficient to discharge the

nonmovant's burden." DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st

Cir. 2005) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896

-14-
F.2d 5, 8 (1st Cir. 1990)) (internal quotation marks omitted).

Rather, "the party seeking to avoid summary judgment 'must be able

to point to specific, competent evidence to support his claim.'"

Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 18 (1st Cir. 1998)

(quoting August v. Offices Unlimited., Inc., 981 F.2d 576, 580 (1st

Cir. 1992)).5

B. Denial of Rule 56(f) Request

Sánchez argues that the district court erred in refusing

to grant his Rule 56(f) request because he could not respond to

AT&T's motion without additional discovery. In Celotex, the

Supreme Court stated that Fed. R. Civ. P. 56(c) "mandates the entry

of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial." 477 U.S. at 322 (emphasis added). The Court further noted

that a party confronted with a "premature motion for summary

judgment" can invoke Rule 56(f), which (at that time) "allowe[d] a

summary judgment motion to be denied, or the hearing on the motion

to be continued, if the nonmoving party has not had an opportunity

to make full discovery." Id. at 326. Sánchez contends that AT&T's

5
That the parties cross-moved for summary judgment does not
affect our standard of review. Since the court granted AT&T's
motion, we apply our analysis to the grant of summary judgment to
AT&T.

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motion was premature because it contained factual assertions that

were not supported by the record. For example, AT&T's motion

asserted that its staffing system was complex and that the system

would be disrupted if Sánchez were given Saturdays off. Sánchez

contends that the district court should have given him additional

discovery time under Rule 56(f) in order to enable him to gather

facts to respond to these assertions.

We find that the district court was correct to deny

Sanchez's request under Rule 56(f). Under the then-existing Rule

56(f), a party confronted with a motion for summary judgment had to

show due diligence in seeking discovery in order to be granted

additional discovery time. See Vargas-Ruiz v. Golden Arch Dev.,

Inc., 368 F.3d 1, 5 (1st Cir. 2004) ("[A] party seeking to postpone

the adjudication of a summary judgment motion on the ground of

incomplete discovery must explain why, in the exercise of due

diligence, he has been unable to obtain the necessary

information."); Resolution Trust Corp. v. N. Bridge Assocs., Inc.,

22 F.3d 1198, 1203 (1st Cir. 1994) ("Rule 56(f) is designed to

minister to the vigilant, not to those who slumber upon perceptible

rights."). Here, Sánchez has failed to demonstrate why he could

not have obtained the information he needed to contest AT&T's

motion prior to the close of discovery.

Sánchez complains that the district court "deprived [him]

of the opportunity to conduct discovery on material facts" and

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"became obfuscated with disposing the action via summary judgment."

Yet the record flatly contradicts Sánchez's assertions. As noted

above, at the ISC, the district court informed the parties: "In

case you can't come up with a proposed Stipulation of Facts, then

let me know, and then you can proceed with Discovery." Sánchez

never indicated to the district court that he could not agree with

AT&T on a Stipulation. In addition, Sánchez did obtain discovery

from AT&T, including the initial disclosures required under Fed. R.

Civ. P. 26 and various documents that Sánchez requested from AT&T

at the ISC.

Because we find that the district court's denial of

Sánchez's Rule 56(f) request was not wrong, much less "plainly

wrong," we find no abuse of discretion by the district court.

Universal Commc'n. Sys., 478 F.3d at 425.6

C. Adjudication on "Case Stated" Basis

Sánchez complains that the district court improperly

decided the case on a so-called "case stated" basis. "In a case

stated, the parties waive trial and present the case to the court

on the undisputed facts in the pre-trial record. The court is then

entitled to 'engage in a certain amount of factfinding, including

the drawing of inferences.'" TLT Constr. Corp. v. RI, Inc., 484

F.3d 130, 135 n.6 (1st Cir. 2007) (quoting United Paperworkers

6
AT&T argues that the form and timing of Sánchez's request were
also improper. Because we find that Sánchez did not demonstrate
the necessary diligence, we need not reach AT&T's other arguments.

-17-
Int'l Union, Local 14 v. Int'l Paper Co., 64 F.3d 28, 31 (1st Cir.

1995)). However, such cases are "somewhat unusual." Id. (quoting

United Paperworkers Int'l Union, Local 14, 64 F.3d at 31) (internal

quotation marks omitted). Therefore, "in cases where the parties

have not explicitly presented their case to the court as a case

stated, we must 'inquire into the intentions of the parties and the

district court judge.'" Id. (quoting García-Ayala v. Lederle

Parenterals, Inc., 212 F.3d 638, 644 (1st Cir. 2000)).

Sánchez argues that the district court was wrong to

decide the case on a "case stated" basis because the parties did

not agree to have the district court do so. Sánchez notes that

under our case law, the mere fact that the parties filed cross-

motions for summary judgment does not necessarily mean that they

intended to submit the case on a case stated basis. See Bos. Five

Cents Sav. Bank, 768 F.2d at 11-12 ("[T]o stipulate a record for

decision allows the judge to decide any significant issues of

material fact that he discovers; to file cross-motions for summary

judgment does not allow him to do so."). While Sánchez

acknowledges that he agreed to a stipulation of facts, he denies

that the stipulation was intended to constitute a complete set of

undisputed material facts such that a case-stated adjudication

might be appropriate.

Although the district court did not use the term "case

stated" in its opinion, it appears that the court applied a "case

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stated" standard in making its decision. The court noted its

belief that the parties "have agreed to provide a joint stipulation

of facts, upon which the Court will decide the present case."

Sánchez-Rodríguez, 728 F. Supp. 2d at 38. The court also explained

that "[s]tipulating facts for decision 'allows the judge to decide

any significant issues of material fact that he discovers.'" Id.

(quoting Bos. Five Cents Sav. Bank, 768 F.3d at 11-12).

We agree with Sánchez that it was error for the district

court to decide this case on a "case-stated" basis. "Case-stated"

resolution is appropriate "when the basic dispute between the

parties concerns only the factual inferences that one might draw

from the more basic facts to which the parties have agreed, and

where neither party has sought to introduce additional factual

evidence or asked to present witnesses." United Paperworkers Int'l

Union, Local 14, 64 F.3d at 31. Despite Sánchez's lack of

diligence in pursuing discovery, he did attempt to introduce

additional factual evidence in the form of the Sánchez Affidavit.

Moreover, it is clear that Sánchez's dispute with AT&T concerns

something more than "factual inferences" that can be drawn from

"basic facts" to which he and AT&T agreed. Rather, Sánchez

disputed AT&T's assertions that certain "facts" were true at all,

such as the "fact" that AT&T had a neutral scheduling system that

might be disturbed by giving him Saturdays off.

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 That the district court erred in applying a case-stated

standard does not mean that the ruling below must be reversed,

however. Instead, we proceed to consider de novo whether summary

judgment for AT&T was warranted, resolving all evidentiary

conflicts and drawing all reasonable inferences in favor of

Sánchez, the non-movant. Kuperman, 645 F.3d at 73.

D. Title VII Discrimination Claim

Title VII forbids an employer "to exclude or to expel

from its membership, or otherwise to discriminate against, any

individual because of his . . . religion . . . ." 42 U.S.C.

§ 2000e-2(c)(1). The statute defines "religion" to include: "all

aspects of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to reasonably

accommodate to an employee's or prospective employee's religious

observance or practice without undue hardship on the conduct of the

employer's business." Id. § 2000e(j). "Thus, in general terms,

Title VII requires employers . . . to accommodate, within

reasonable limits, the bona fide religious beliefs and practices of

employees." Unión Independiente, 279 F.3d at 55.

We apply a two-part framework in analyzing religious

discrimination claims under Title VII. "First, the plaintiff must

make [his] prima facie case that a bona fide religious practice

conflicts with an employment requirement and was the reason for the

adverse employment action." Cloutier v. Costco Wholesale Corp.,

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390 F.3d 126, 133 (1st Cir. 2004). "Once the plaintiff has

established this prima facie case, the burden shifts to the

[employer] to show that it made a reasonable accommodation of the

religious practice or show that any accommodation would result in

undue hardship." Unión Independiente, 27 F.3d at 55 (emphasis

added).

The district court found that Sánchez had established his

prima facie case, Sánchez-Rodríguez, 728 F. Supp. 2d at 39-40, and

AT&T concedes this point for purposes of argument on appeal. Thus,

we consider whether the facts, viewed in the light most favorable

to Sánchez, demonstrate either that AT&T offered a reasonable

accommodation or that accommodating Sánchez would have resulted in

undue hardship.

"[C]ases involving reasonable accommodation turn heavily

upon their facts and an appraisal of the reasonableness of the

parties' behavior." Rocafort v. IBM Corp., 334 F.3d 115, 120 (1st

Cir. 2003) (discussing reasonable accommodation in the Americans

With Disabilities Act context) (quoting Jacques v. Clean-Up Grp.,

Inc., 96 F.3d 506, 515 (1st Cir. 1996)). Furthermore, other

Circuits have held that when analyzing whether an employer provided

a reasonable accommodation, a court should take a "totality of the

circumstances" approach and consider whether the combination of

accommodations provided by the employer was reasonable. See, e.g.,

Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1030 (8th

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Cir. 2008) ("What is reasonable depends on the totality of the

circumstances and therefore might, or might not, require

elimination of a particular, fact-specific conflict.") (emphasis

added); Hudson v. W. Airlines, Inc., 851 F.2d 261, 266 (9th Cir.

1988) (examining the accommodations available to employee and

concluding that "[a]ll of these accommodations together" provided

the employee with a reasonable accommodation) (emphasis added). We

believe that this "totality of the circumstances" approach is

sensible. Thus, to determine whether AT&T offered Sánchez a

reasonable accommodation, we will analyze whether the combination

of accommodations offered by AT&T was reasonable.

AT&T points to three ways in which it tried to

accommodate Sánchez: (1) by offering him the Rep 1 and Business

Sales Specialist positions as a substitute for his Retail Sales

Consultant position; (2) by allowing him to swap shifts with his

co-workers; and (3) by refraining from disciplining him for

absenteeism prior to May of 2007. Sánchez contends that AT&T's

offer of other positions was not reasonable because those positions

offered lower compensation. He also contends that the offer of

shift-swapping was not reasonable because AT&T did not provide the

schedules of other employees, as it had promised.

However, we need not decide whether either of these

accommodations was reasonable in isolation, because they were not

offered in isolation -- rather, they were offered as part of a

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series of attempts by AT&T to accommodate Sánchez. Many courts

have found similar accommodations or combinations of accommodations

to be reasonable under Title VII. See, e.g., Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63, 77-78 (1977) (holding that employer

reasonably accommodated Seventh Day Adventist employee by, inter

alia, agreeing to permit any shift exchanges that employee could

arrange on his own); Morrissette-Brown v. Mobile Infirmary Med.

Ctr., 506 F.3d 1317, 1323-24 (11th Cir. 2007) (finding that

employer reasonably accommodated Seventh Day Adventist employee by

allowing shift swaps, refraining from disciplining employee for

absenteeism for three months, and offering transfer to another

position with reduced benefits that did not require work on the

Sabbath); Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149,

1156-57 (10th Cir. 2000) (finding that where employer "remained

sympathetic to [the plaintiff]'s religious requirements, approved

all voluntary schedule swaps that [the plaintiff] was able to

arrange, and imposed no restrictions or impediments on [the

plaintiff]'s ability to attempt to arrange further voluntary

schedule swaps with other employees," employer did "all that Title

VII reasonably requires the [employer] to do") (citing 29 C.F.R.

§ 1605.2(d)(1)(I)); Eversley v. MBank Dallas, 843 F.2d 172, 176

(5th Cir. 1988) (finding reasonable accommodation where employer

delayed planned schedule changes in order to accommodate employee

and offered lower-paying position that did not conflict with

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Sabbath); Hudson, 851 F.2d at 26 (provisions set forth in a

collective bargaining agreement which "provided a means by which

[an employee] could bid upon work schedules, work domiciles,

vacation time, and personal leave . . . [and] allowed [an employee]

to modify her schedule by trading her entire schedule or specific

days off with other employees," taken together, provided the

employee with a reasonable accommodation); Smith v. Pyro Mining

Co., 827 F.2d 1081, 1088 (6th Cir. 1987) (holding that as long as

employee has no religious constraints against arranging his own

schedule swap with other employees, employer reasonably

accommodates employee by simply allowing swaps).

Taken together, we believe that the efforts made by AT&T

constituted a reasonable accommodation of Sánchez's religious

beliefs. Therefore, we affirm the judgment of the district court

on the discrimination claim. We need not reach the question of

whether accommodating Sánchez would have been an undue hardship for

AT&T.

E. Title VII Retaliation Claim

Sánchez claims that AT&T retaliated against him for

filing his EEOC complaint in February of 2007. Title VII prohibits

employers from "discriminat[ing] against any of [their] employees

. . . because [the employee] has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing." 42 U.S.C. § 2000e-3(a). A plaintiff

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establishes a prima facie case for retaliation by showing that: (1)

he engaged in protected conduct under Title VII; (2) he experienced

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

between the protected conduct and the adverse employment action.

Gu, 312 F.3d at 13-14. See also White v. N.H. Dep't of Corr., 221

F.3d 254, 262 (1st Cir. 2000). Once a plaintiff establishes a

prima facie case of retaliation, the burden shifts to the employer

to demonstrate that there was a non-discriminatory reason for the

adverse employment action. Douglas v. J.C. Penney Co., Inc., 474

F.3d 10, 14 (1st Cir. 2007). If the employer demonstrates such a

reason, the burden returns to the plaintiff to show that the

non-discriminatory reason was merely a pretext for discrimination.

Id.

The district court held that Sánchez established a prima

facie case. Sánchez-Rodríguez, 728 F. Supp. 2d at 45. However,

the court then held that AT&T had demonstrated non-discriminatory

reasons for its adverse employment actions and that Sánchez had

failed to show that these reasons were pretextual. Id. at 46. On

appeal, Sánchez argues that the district court incorrectly

concluded that Sánchez had not shown that AT&T's reasons were

pretextual. We review the district court's decision de novo, and

we can affirm it on any ground apparent in the record. Cahoon, 647

F.3d at 22.

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 Sánchez easily satisfies the first prong of the prima

facie case, since he engaged in protected activity by filing a

charge with the EEOC. See, e.g., Mariani-Colón v. Dep't of

Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir. 2007)

(recognizing that plaintiff "undoubtedly" engaged in a protected

activity when he contacted the EEOC alleging discrimination).

Sánchez points to three different adverse actions that he claims

are causally connected to his protected activity: (1) AT&T's

failure to interview him for the "Small Biz Advisor" position; (2)

AT&T's offer of unreasonable accommodations; and (3) disciplinary

actions for absenteeism. We explore in turn whether these actions

constitute retaliation.

The parties stipulated that Sánchez applied for the

"Small Biz Advisor (Small Business Advisor)" position on March 1,

2007, but that he was "not scheduled for interview" for this

position. There is no evidence in the record regarding why Sánchez

was not interviewed. A failure to hire can be an "adverse

employment action" for the purposes of a Title VII retaliation

claim. See Vélez v. Janssen Ortho, LLC, 467 F.3d 802 (1st Cir.

2006). To show that a failure to hire is an adverse employment

action, a plaintiff must show that "(1) she applied for a

particular position (2) which was vacant and (3) for which she was

qualified." Id. at 803 (emphasis added). Because demonstrating an

"adverse employment action" is part of the prima facie case that a

-26-
plaintiff has the burden of demonstrating, the plaintiff in turn

has the burden of showing the three aforementioned factors from

Vélez.

Here, the record is entirely devoid of any information

regarding whether Sánchez was qualified for the Small Biz Advisor

position or whether there was even an opening for such a position.

Because Sánchez is the party who bears the burden of demonstrating

these factors, this lack of evidence weighs against Sánchez, even

though AT&T was the summary judgment movant. See Pérez v. Volvo

Car Corp., 247 F.3d 303, 310 (1st Cir. 2001) (on summary judgment,

"an absence of evidence on a critical issue weighs against the

party -- be it the movant or the nonmovant -- who would bear the

burden of proof on that issue at trial") (emphasis added). Thus,

we conclude that Sánchez cannot demonstrate that the failure to

interview him for the Small Biz Advisor position was an "adverse

employment action" for the purposes of his retaliation claim.

Next, Sánchez argues that the accommodations offered by

AT&T -- the alternate positions, not imposing discipline for

failure to show up for work on Saturdays up to May of 2007, and the

shift-swapping -- were so unreasonable that the mere offer of them

constituted an adverse employment action. We disagree. An adverse

employment action in the retaliation context is any action that

"might have dissuaded a reasonable worker from making or supporting

a charge of discrimination." Carmona-Rivera v. Puerto Rico, 464

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F.3d 14, 20 (1st Cir. 2006) (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006)). Hypothetically, an employer

could offer an "accommodation" that is so objectively unreasonable

or unworkable, or such an insult to an employee's religious

beliefs, that a reasonable worker would be dissuaded from pursuing

a charge of discrimination. But that is not the case here. As

discussed above, the accommodations offered by AT&T were

reasonable.

Finally, Sánchez argues that AT&T retaliated against him

by disciplining him for his absenteeism. The Stipulation reflects

that AT&T (1) placed Sánchez on "active disciplinary status," (2)

sent him emails advising him that his sales quotas were below

expectations, and (3) warned him that his absences would be subject

to the company's attendance policy. Whether an admonishment

constitutes an adverse employment action may depend on a number of

factors, including in particular its practical consequences; but,

as the issue does not affect the ultimate disposition here, we can

bypass the issue and assume arguendo that in this case Sánchez

suffered an adverse employment action. We also find that Sánchez

has satisfied the "causal connection" prong of his prima facie

case. "'Very close'" temporal proximity between protected activity

and an adverse employment action can satisfy a plaintiff's burden

of showing causal connection. Calero-Cerezo v. U.S. Dep't. of

Justice, 355 F.3d 6, 25 (1st Cir. 2004) (citing Clark Cnty Sch.

-28-
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). Here, Sánchez

filed his EEOC complaint in February of 2007 and was disciplined in

May of 2007. We believe this proximity is close enough to suggest

causation, especially given the inferences we must draw in

Sánchez's favor.

Because Sánchez has made a prima facie case of

retaliation based on the discipline he received in May of 2007, the

burden shifts to AT&T to show that it had a non-discriminatory

reason for disciplining him. We find that AT&T easily satisfies

this burden. Sánchez admits he was absent from work on Saturdays,

and in turn AT&T disciplined him for his absenteeism. The burden

thus shifts back to Sánchez to show that AT&T's reasons were merely

pretextual. Here, Sánchez's claim founders. To defeat summary

judgment in a retaliation case, "a plaintiff must point to some

evidence of retaliation by a pertinent decisionmaker." Randlett v.

Shalala, 118 F.3d 857, 862 (1st Cir. 1997). Here, Sánchez points

to no evidence whatsoever, and as noted previously, made no effort

to discover any such evidence.

Since Sánchez has failed to point to any evidence that

AT&T's reasons for disciplining him were merely a pretext for

religious discrimination, we affirm the district court's grant of

summary judgment to AT&T on the retaliation claim.

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 III. Sanctions

AT&T has moved for sanctions against Sánchez and/or his

lawyers on the ground that Sánchez's appeal brief to this Court

"grossly misstates" the record regarding the discovery proceedings

before the district court. Sánchez has not responded to AT&T's

motion.

AT&T requests sanctions under Fed. R. App. P. 38 and

under 28 U.S.C. § 1927. Under Fed. R. App. P. 38, "[i]f a court of

appeals determines that an appeal is frivolous, it may, after a

separately filed motion or notice from the court and reasonable

opportunity to respond, award just damages and single or double

costs to the appellee." An appeal is frivolous "if the result is

obvious or the arguments are wholly without merit." Pimentel v.

Jacobsen Fishing Co., Inc., 102 F.3d 638, 640 (1st Cir. 1996)

(citations and quotations omitted) (emphasis in original). In

addition, "[a]lthough Rule 38 speaks in terms of frivolousness, we

have awarded costs and attorneys' fees pursuant to it for 'what can

only be characterized as blatant misrepresentations in appellant's

brief.'" Thomas v. Digital Equip. Corp., 880 F.2d 1486, 1491 (1st

Cir. 1989) (quoting Ortiz Villafañe v. Segarra, 797 F.2d 1, 2 (1st

Cir. 1986)).

Under 28 U.S.C. § 1927:

Any attorney or other person admitted to
conduct cases in any court of the United
States or any Territory thereof who so
multiplies the proceedings in any case

-30-
 unreasonably and vexatiously may be required
by the court to satisfy personally the excess
costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.

We have held that filing a frivolous appeal qualifies as

"unreasonably and vexatiously multipl[ying] the proceedings." See

Cruz v. Savage, 896 F.2d 626, 635 (1st Cir. 1990).

Sánchez's appeal was clearly not frivolous. Sánchez's

arguments were not completely meritless, even though they were

ultimately unsuccessful. Thus, we will not sanction Sánchez or his

attorneys for frivolousness.

We do note that Sánchez's brief contains incorrect

statements about the discovery process before the district court.

Yet we do not find these misstatements to be so extreme as to

warrant monetary sanctions in this case. However, we warn

Sánchez's counsel that future conduct of this nature will not be

tolerated. If Sánchez's lawyers had any concerns about the

district court's discovery plan, they should have raised those

concerns with the district court. It is not appropriate for

attorneys to try to correct their own mistakes or lack of diligence

at the trial court level by trying to re-write the record on

appeal.

IV. Conclusion

The district court's grant of summary judgment to AT&T on

Sánchez's Title VII religious discrimination claim is affirmed.

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The district court's grant of summary judgment to AT&T on Sánchez'

Title VII retaliation claim is affirmed.

Affirmed.

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