Alvarado v. Donahoe

United States Court of Appeals
For the First Circuit

No. 11-1686

ALEX ALVARADO,

Plaintiff, Appellant,

v.

PATRICK R. DONAHOE, in his official capacity
as Postmaster General, United States Postal Service,

Defendant, Appellee.

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 Selya, Circuit Judges.

José F. Quetglas-Jordán and Pedro R. Vázquez, III, on brief
for appellant.
David C. Belt, Attorney, Office of General Counsel, United
States Postal Service, Rosa E. Rodríguez-Vélez, United States
Attorney, Nelson José Pérez-Sosa, Assistant United States Attorney,
and Michael J. Elston, Chief Counsel, Appellate & Commercial
Litigation, on brief for appellee.

July 19, 2012
 TORRUELLA, Circuit Judge. Plaintiff-Appellant Alex

Alvarado ("Alvarado") appeals from the district court's grant of

summary judgment on his claim of retaliation against his employer,

the United States Postal Service ("USPS"). On appeal, Alvarado

alleges that the summary judgment record contains sufficient

evidence to establish a claim of unlawful retaliation under the

Rehabilitation Act, 29 U.S.C. § 791 et seq. Because we conclude

that Alvarado has not proffered evidence sufficient to establish a

prima facie claim of retaliation, we affirm the district court's

decision.

I. Background

A. Alvarado's Employment with USPS

Alvarado began his career at the USPS in 1991. In 2000,

he became a full-time mail carrier and was assigned to a delivery

route in the Bayamón, Puerto Rico area.

Alvarado has a documented medical history of recurrent

schizoaffective disorder which was first diagnosed in August 1992.

He began taking medication for this disorder at age fifteen.

According to Alvarado, the medication made him drowsy and slowed

his work pace, at times making him late with his mail delivery.

Any negative side effects, however, apparently paled in comparison

to the medication's benefits: Alvarado was largely able to control

the symptoms of his condition and effectively perform his duties

during most of his tenure as a mail carrier. Testament to his

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competent performance is the fact that Alvarado received varied

commendations from his superiors throughout his employ.

Alvarado claims to have been subjected to harassment and

discrimination from the moment he told his superiors of his medical

condition.1 In a notable November 2006 incident that set the

wheels of this action in motion, Carmelo Moyeno ("Moyeno"), the

President of the Union of Mail Carriers, made allegedly derogatory

remarks to Alvarado about his mental health such as "[t]ake your

pills" and "[y]ou really don't know about real problems," which

Alvarado felt were intended to belittle his condition. On

January 23, 2007, in response to those comments, Alvarado requested

an appointment with a dispute resolution specialist with the USPS's

Equal Employment Opportunity ("EEO") office. He followed his

appointment by filing EEO charges on February 8, 2007, which

alleged that two of his supervisors, Rubén Maldonado ("Maldonado")

and Eddie Labrador ("Labrador"), failed to prevent Moyeno's verbal

abuse.

On April 19, 2007, Alvarado notified Maldonado and

Labrador about his EEO filing. That same day, while Alvarado sang

within Moyeno's earshot, Moyeno said in front of their co-workers:

"[g]ive him the pill. He has not taken his pill. He needs his

1
The record is unclear regarding when Alvarado delivered the news
about his psychiatric diagnosis and treatment to his supervisors at
the Bayamón USPS branch. It appears to have taken place at some
point between April 2006 and January 2007.

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green, yellow, red pill. Which pill hasn't he taken?" Moyeno made

similar derisive comments regarding Alvarado's condition and

medication throughout 2007 and 2008.2

At another unspecified date in 2007, Alvarado brought

"sorullos"3 ("corn sticks") to work as a gift for his co-workers.

Maldonado told Alvarado that he would "put [him] to work with [his]

family." Because Alvarado's family worked in a factory making corn

sticks, Alvarado interpreted this comment as a threat that

Maldonado would terminate his employment. Also in 2007, after

Alvarado presented another of his supervisors, Armando Pérez

("Pérez"), with administrative Family and Medical Leave Act

("FMLA") documents related to his condition and treatment, Pérez

repeatedly called Alvarado "crazy." Alvarado testified that Pérez

frequently made similar comments throughout 2008 but did not

provide detail regarding other specific incidents.

During the same time period, another supervisor, Delivery

Programs Manager Andrew Zeisky ("Zeisky"), searched Alvarado's car

2
The record contains an EEO investigative affidavit in which
Orlando González, one of Alvarado's co-workers, corroborated that
the April 19, 2007 incident involving Moyeno took place. González
also stated that Moyeno made similar statements "around years 2007
to 2008." We take these and all other facts in the record below as
true and "resolv[e] any factual conflicts or disparities" in
Alvarado's favor. Colt Def. LLC v. Bushmaster Firearms, Inc., 486
F.3d 701, 705 (1st Cir. 2007).
3
"Sorullos," also known as "sorullitos," are a typical Puerto
Rican dish prepared by frying cornmeal-based batter that has been
rolled into "stick" form. The parties here refer to sorullos as
"corn sticks." We adopt their nomenclature for ease of reading.

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on multiple occasions. Alvarado conceded that, as a USPS manager,

Zeisky was authorized by regulation to search all privately owned

vehicles that mail carriers used to deliver mail, but nevertheless

felt that Zeisky selectively targeted him for searches and that, in

any case, Zeisky's searches were unjustly and excessively thorough.

In time, Alvarado ran into problems relating to his work

performance. Alvarado's slow work pace, which he claimed to be a

side effect of his medication, became a growing concern of his

supervisors starting in late 2007. During that year's Christmas

season –- a period marked by an increase in mail deliveries --

Alvarado frequently returned from his delivery route after 5:00 PM,

the branch's official closing time. Maldonado instructed Alvarado

that if he arrived after 5:30 PM, he should leave any undistributed

mail, keys, and other equipment in a storage room outside the post

office. Instead of providing a solution for his lateness, Alvarado

testified that Maldonado's instructions caused him more anxiety and

fear, as he felt that, were any mail to be stolen, he would be held

responsible and likely fired.

Matters came to a head in early 2008. On January 26,

2008, Customer Service Supervisor Brenda Ríos ("Ríos"), another of

Alvarado's supervisors, discovered a container full of undelivered

mail, for which she believed Alvarado was responsible. On

January 30, 2008, Alvarado was unable to return to the post office

from his delivery route by 5:00 PM as required by standard

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procedure and did not communicate with Ríos to inform her of his

whereabouts, instead calling a co-worker.4 Expecting Alvarado and

unaware of his location, Ríos called Alvarado's cell phone and,

when Alvarado did not answer, left a message in which she

threatened to contact the postal inspectors if he did not promptly

return. Alvarado eventually arrived at the USPS branch at

approximately 6:30 PM -- an hour and a half past his scheduled

arrival time -- but was not disciplined for his tardiness. Upset

at Ríos's threats to call the postal inspectors, however, Alvarado

contacted the EEO office that same day and filed a preliminary

complaint report alleging harassment and managerial misconduct on

Ríos's part. Approximately a week later, on February 6, 2008,

Zeisky issued Alvarado a fourteen-day suspension for improper

conduct and delay of mail relating to the January 26, 2008 incident

involving the undelivered mail. Zeisky based his decision to

suspend Alvarado on Ríos's explanation of the event and on

information that he received from Customer Supervisor Awilda

Rodríguez ("Rodríguez"), another of Alvarado's supervisors at the

Bayamón station.5

4
It is not clear whether USPS regulations required Alvarado to
telephone his supervisor, and he was not disciplined for the
incident. Alvarado claims to have called the co-worker who was
supposed to be waiting for the remaining undelivered mail, keys,
and equipment.
5
Following his resignation, on May 15, 2008, Alvarado received
notice from the National Letter Carrier Association that his
suspension had been reduced to a letter of warning, the lowest

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 On February 16, 2008, Alvarado returned to the Bayamón

USPS branch at approximately 6:00 PM after completing his delivery

route and found it closed. In his deposition, Alvarado testified

that the situation reminded him of the January 30, 2008 incident,

and, feeling anxious and humiliated, he began to cry. Alvarado did

not return to work after that date and officially resigned his post

on April 29, 2008. Since his resignation, Alvarado has been found

permanently disabled and eligible for disability benefits by the

Social Security Administration and the Department of Labor Office

of Workmen's Compensation Program.

B. Procedural History

On April 15, 2008, Alvarado filed a formal EEO complaint

of discrimination against Moyeno, Ríos, Rodríguez, Pérez, and

Maldonado. In his complaint, Alvarado claimed that he had been

subjected to a hostile work environment during a period spanning

April 2007 through February 2008 and that this unfortunate turn of

applicable level of disciplinary action. Alvarado v. Potter, 813
F. Supp. 2d 247, 251 (D.P.R. 2011).

Both Zeisky and Rodríguez endorsed Alvarado's February 6, 2008
Notice of Suspension. Alvarado named Rodríguez as a "person who
took discriminatory actions against him" in his formal EEO
complaint for disability-based discrimination and retaliation
against USPS. The extent, if any, to which Rodríguez was involved
in the January 26, 2008 incident -- with the exception of providing
information to Zeisky, her supervisor, and endorsing the agency's
decision to suspend Alvarado in her supervisory capacity -- is
unclear.

-7-
events was brought on in retaliation for his decision to file

charges with the EEO office in February 2007.

Alvarado exhausted EEO administrative proceedings and, in

August 2008, filed suit in the U.S. District Court for the District

of Puerto Rico against the Postmaster General, alleging

discrimination on the basis of disability and unlawful retaliation

under the Rehabilitation Act, 29 U.S.C. § 791 et seq.

On May 4, 2011, the district court granted the Postmaster

General's request for summary judgment. See Alvarado v. Potter,

813 F. Supp. 2d 247 (D.P.R. 2011). As to Alvarado's allegations of

disability discrimination, the district court reasoned that

Alvarado could not establish a prima facie claim under the

Rehabilitation Act because he could not show that he was

"substantially limited" in any of the major life activities

allegedly impaired by his disorder. Id. at 254. The district

court also found that Alvarado could not make out a prima facie

claim of unlawful retaliation because the harassment that Alvarado

alleged to have suffered did not constitute an "actionable 'hostile

work environment' claim." Id. at 256. Alvarado then appealed.

-8-
 II. Discussion

A. Standard of Review

We review the district court's grant of summary judgment

de novo. See Pérez-Cordero v. Wal-Mart P.R. Inc., 656 F.3d 19, 25

(1st Cir. 2011). Summary judgment is reserved for circumstances

where the record shows that "there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law." Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir.

2011) (citing Fed. R. Civ. P. 56(a)). In retaliation cases, where

elusive concepts such as motive or intent are at issue, summary

judgment is appropriate if the non-moving party rests only upon

conclusory allegations, improbable inferences, and unsupported

speculation. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855-56

(1st Cir. 2008); see also Vives v. Fajardo, 472 F.3d 19, 21 (1st

Cir. 2007).

B. Allegations of Retaliation

As noted, Alvarado's district court claim alleged

discrimination on the basis of his disability and retaliatory

harassment leading to constructive discharge. The district court

granted summary judgment against Alvarado as to both claims, but

Alvarado now asserts an appeal only with regards to his claim of

retaliatory harassment. We limit our discussion accordingly.

We review Alvarado's claim of unlawful retaliation under

the customary McDonnell Douglas burden-shifting framework. See

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). In

order to establish a prima facie claim of retaliation, Alvarado

must demonstrate that (i) he undertook some protected conduct, (ii)

he suffered an adverse employment action, and (iii) that the two

were causally linked. Carmona-Rivera v. Puerto Rico, 464 F.3d 14,

19 (1st Cir. 2006) (citing Noviello v. City of Boston, 398 F.3d

76, 88 (1st Cir. 2005)). If Alvarado establishes a prima facie

claim, the burden then shifts to his employer to proffer a

"'legitimate, non-retaliatory reason for [its] employment

decisions.'" Roman v. Potter, 604 F.3d 34, 39 (1st Cir. 2010)

(quoting Enica v. Principi, 544 F.3d 328, 343 (1st Cir. 2008))

(alterations omitted). If the employer provides a legitimate

reason and meets this burden of production, Alvarado -- who retains

the burden of proof throughout -- would have to show that his

employer's stated reasons are pretextual and proffered to disguise

retaliatory animus. See Collazo v. Bristol-Myers Squibb Mfg., 617

F.3d 39, 46 (1st Cir. 2010).

The parties do not dispute that Alvarado engaged in

protected conduct when he filed an EEO claim on February 8, 2007.

As to the second prima facie factor, Alvarado claims that he was

subjected to a sequence of taunts, derogatory comments, and

increased or unjustified supervision and discipline, all of which

came on the heels of his protected activity. Considered in the

aggregate, these events, Alvarado claims, compounded to create a

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hostile work environment that left him no option but to leave his

employment. We assess the merits of Alvarado's claims.

1. Alleged Retaliatory Incidents that May Not Properly
be Included in the Hostile Work Environment Calculus

That a series of minor retaliatory actions may, when

considered in the aggregate, satisfy the McDonnell Douglas prima

facie "adverse action" requirement, is settled law in this Circuit.

See, e.g., Noviello, 398 F.3d at 91 (holding that "subjecting an

employee to a hostile work environment in retaliation for protected

activity constitutes an adverse employment action"); see also

Billings v. Town of Grafton, 515 F.3d 39, 54 n.13 (1st Cir. 2008).

But, as the third prima facie factor commands, it is similarly

accepted that alleged retaliatory actions against an employee must

bear a causal connection to some protected conduct in order to

establish a prima facie claim that rests on a hostile work

environment theory. Consequently, "[i]t is only those actions,

directed at a complainant, that stem from a retaliatory animus

which may be factored into the hostile work environment calculus."

Noviello, 398 F.3d at 93.

A number of the acts that Alvarado claims converged to

create a hostile work environment plainly lack a causal connection

from which a reasonable factfinder could discern retaliatory

animus. Most notably, the record contains compelling evidence in

the form of affidavits which suggest that several of the

supervisors whom Alvarado claims carried out retaliatory acts

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against him did not, in fact, know that Alvarado had filed EEO

charges against his employer at the time that events involving them

took place. Speaking commonsensically, our cases have in the past

explained that, to successfully establish a claim of unlawful

retaliation there must be, "at a minimum, . . . competent evidence

that the alleged retaliators knew of the plaintiff's protected

activity and that a retaliatory motive played a part in the adverse

employment actions alleged . . . ." Lewis v. Gillette Co., 22 F.3d

22, 24 (1st Cir. 1994) (emphasis added); see also Pomales v.

Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006). The

reasons underlying such a requirement are obvious: if a supervisor

or other employee is unaware of the fact that a plaintiff engaged

in protected conduct, any actions attributable to him could not

plausibly have been induced by retaliatory motives. See Miller v.

Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000) ("An

employee can honestly believe she is the object of discrimination,

but if she never mentions it, a claim of retaliation is not

implicated, for an employer cannot retaliate when it is unaware of

any complaints.").

As suggested, Alvarado attributes several claims of

retaliation to individuals who seemingly had no knowledge of his

protected activity. First, Alvarado alleges that Colón, a

supervisor, subjected him to "extreme supervision and mockery"

starting at some point in April 2007. Specifically, Alvarado

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claims that after instances in which he returned late from

delivering the mail, Colón would threaten to sic postal inspectors

upon him to follow him throughout his route and, importantly, that

Colón would do this in retaliation for his February 2007 EEO

filings.6 Without delving into the question of whether Colón's

comments were a proper response to Alvarado's tardiness, we note

that in an EEO investigative affidavit dated July 2, 2008, Colón

affirmed that he was not "aware of [Alvarado's] prior EEO activity"

-- a fact that would render any activity attributable to Colón

ineffectual to the retaliatory calculus.7 This denial of knowledge

is not refuted by any evidence in the summary judgment record.

The Postmaster General correctly notes that the same can

be said of other supervisors whom Alvarado claims acted out of

retaliatory animus against him. Zeisky, for example, who allegedly

6
There is no indication in the record that Colón ever followed
through on his threats to call the postal inspectors to have them
follow Alvarado along his route. Nor is there indication that
Colón took any other action regarding Alvarado's tardiness.
7
The record shows that Colón was aware of Alvarado's condition
because, at least on one occasion, Colón endorsed FMLA materials
related to Alvarado's psychiatric treatment. We note that the fact
that Colón may have had knowledge of Alvarado's disability does not
bear on the separate question of whether Colón retaliated against
Alvarado for engaging in protected activity.

Insofar as Alvarado claims that Colón's retaliatory conduct was
of a prolonged nature, we further note that Alvarado does not
dispute record evidence showing that, from July 2007 and through
the remainder of the relevant period, Colón was assigned to work in
USPS branches other than Alvarado's and did not directly oversee
his work after that date.

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searched Alvarado's car without justification at unspecified points

in 2007 and 2008, also stated in an uncontradicted EEO affidavit

that he was unaware of any EEO activity undertaken by Alvarado,

and, thus, was oblivious to his having engaged in the established

protected conduct. So also affirmed Ríos, the attending supervisor

involved in the January 26, 2008 incident for which Alvarado was

disciplined with a fourteen-day suspension, and Rodríguez, another

of Alvarado's supervisors at the USPS Bayamón branch.

Alvarado does little to counter these supervisors'

attestations that they were uninformed of his decision to file EEO

charges. Insofar as he challenges this evidence, Alvarado states,

without more, that supervisors other than Maldonado and Labrador --

whom Alvarado directly notified about his EEO charges -- "should

have known" about his protected conduct by virtue of their

managerial status, because "supervisors and 'Union' members [would]

get in contact constantly [to] discuss[] employee's problems."

Such an unsubstantiated statement, however, lacking support in the

record or other proffered evidence, is not only flimsy but fatally

so. At the summary judgment stage, Alvarado cannot rely on "bare

allegations," he must, instead, "point to specific facts that were

properly asserted in . . . affidavits and supporting materials"

which would permit a reasonable juror to find in his favor at

trial. Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985) (quoting

Over the Rd. Drivers, Inc. v. Transp. Ins. Co., 637 F.2d 816, 818

-14-
(1st Cir. 1980)) (internal quotation mark omitted); see also Ahern

v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) ("Conclusions that

rest wholly on speculation are insufficient to defeat a motion for

summary judgment."). Having failed to do so in connection with his

claims that supervisors Colón, Zeisky, Ríos, and Rodríguez were

motivated by retaliatory animus in their interactions with him or

their decisions to take disciplinary action against him, Alvarado

may not properly rely on these incidents in pressing his

overarching contention that a hostile work environment drove him to

resign his post. See Noviello, 398 F.3d at 93.

2. Remaining Allegations of Retaliation that Alvarado
Alleges Compounded to Create a Hostile Work Environment

For the reasons we have explained above we conclude that

Alvarado may only rely on the incidents involving Moyeno, one of

his co-workers, and Maldonado and Pérez, two of his supervisors, in

his efforts to make out a prima facie claim of unlawful

retaliation. Alvarado alleges -- and we credit his assertion as

true -- that he informed Maldonado of his EEO discrimination

complaint on April 19, 2007. Because the record does not contain

evidence which would suggest that Moyeno and Pérez either knew or,

conversely, were unaware of Alvarado's protected activity, we

resolve any uncertainty in that regard in Alvarado's favor and

assume for present purposes that they both knew of his having filed

EEO charges against Maldonado and Labrador in February 2007.

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 In assessing whether Alvarado can make a prima facie

showing that he suffered a materially adverse action, we ascertain

whether, taken together, any actions attributable to these

individuals "show that a reasonable employee would have found the

[conduct] materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting

a charge of discrimination." Carmona-Rivera, 464 F.3d at 20

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)) (internal quotation mark omitted). Under the hostile work

environment theory that Alvarado presses, even a string of trivial

annoyances will not suffice to make an adverse action showing: "the

alleged harassment must be 'severe or pervasive,'" Gómez-Pérez v.

Potter, 452 F. App'x 3, 9 (1st Cir. 2011) (quoting Che v. Mass. Bay

Transp. Auth., 342 F.3d 31, 40 (1st Cir. 2003)) (internal quotation

mark omitted). And any abuse must be both objectively offensive

(as viewed from a reasonable person's perspective) and subjectively

so (as perceived by the plaintiff). Noviello, 398 F.3d at 92.

Consequently, our inquiry looks to separate the wheat from the

chaff, to "distinguish between the ordinary . . . vicissitudes of

the workplace and actual harassment." Id. (citing Faragher v. City

of Boca Raton, 524 U.S. 775, 787-88 (1998)); see also Colón-

Fontánez v. Mun. of San Juan, 660 F.3d 17, 43 (1st Cir. 2011).

We do not believe that Alvarado has met his prima facie

burden to establish that he suffered a materially adverse

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employment action because the remaining examples of allegedly

retaliatory conduct upon which he relies fall markedly short of

what we have in the past considered suggestive of a hostile work

environment. One of these incidents is so inadequate as to warrant

individual mention. Specifically, Alvarado relies on the fact that

at some point in late 2007 or early 2008 –- and, by Alvarado's own

admission, following a string of instances in which he was late in

returning from delivering mail along his route -- Maldonado

instructed him that if he were to arrive after 5:30 PM, he was to

leave any undelivered mail in a storage room outside the USPS

branch, along with his keys and other USPS-issued equipment. Even

viewing the facts in the light most favorable to Alvarado, however,

we fail to see how Maldonado's comment could be construed as

harassing in character, either standing alone or within the greater

pattern of workplace hostility that Alvarado claims to have

suffered. At best, Maldonado's comment appears to have been a

supervisory command intended to accommodate Alvarado's admitted

propensity to finish his workday later than policy dictated during

the relevant time period. But even stripped of any goodwill on

Maldonado's part, Maldonado's instructions to Alvarado that he

should deposit undelivered mail, his keys, and other agency-

provided equipment in a storage room outside the USPS branch seem

neutral in nature instead of offensive or abusive -- by no means

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the stuff from which objectively hostile work environments are

made.8

The remaining episodes involving Maldonado, Moyeno, and

Pérez are admittedly more troublesome and suggest that Alvarado's

relationships with these three individuals were not without tension

or discomfort. First, there is the April 19, 2007 incident in

which Moyeno derisively told co-workers to "give [Alvarado] the

pill" and loudly asked "[w]hich pill hasn't he taken," presumably

mocking the fact that Alvarado audibly sang to himself while he

worked at the time. Second, at an unspecified date in 2007 on

which Alvarado brought corn sticks as a treat for his co-workers,

Maldonado told Alvarado that he would "put [him] to work with [his]

family," a statement that Alvarado claims to have understood as a

threat to his continued employment. Finally, Alvarado alleges

that, at another unspecified point in late 2007, Pérez repeatedly

called him "crazy" after he showed Pérez an FMLA document which

referenced his schizoaffective condition, specifically telling him:

"crazy, crazy, you're crazy."

8
In his filings to the EEO office, the district court, and this
court, Alvarado has stated that Maldonado's instructions that he
should leave any undelivered mail and equipment in a storage room
caused him anxiety and fear. Alvarado attributes his consternation
to the fact that he believed that if any undelivered mail or
materials were stolen from the storage room or otherwise misplaced,
he would be held responsible. We do not discount or minimize any
anxiety or fear that Alvarado may have felt. However, while
Maldonado's directions may have seemed, to Alvarado, subjectively
disagreeable or even antagonistic, we do not find that they were
objectively so.

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 It can hardly be doubted that most individuals would find

these incidents unpleasant to forbear. Moyeno, Maldonado, and

Pérez were all, at the time of these respective events, aware of

Alvarado's psychiatric condition; their taunting and mocking

comments were both callous and objectionable. But distasteful as

their actions may have been, they do not constitute the severe or

pervasive adverse conduct that the case law recognizes as

"discriminatory changes in the 'terms and conditions of

employment,'" Faragher, 524 U.S. at 788, sufficient to "establish

an objectively hostile or abusive work environment," Colón-

Fontánez, 660 F.3d at 44. See also Suárez v. 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 slings and arrows that workers routinely

encounter in a hard, cold world."). Moreover, Alvarado has not

specified the dates on which the incidents involving Maldonado or

Pérez took place, with the exception of indicating that the latter

took place in late 2007. Therefore, his hostile work environment

claim necessarily rests on three discrete verbal exchanges taking

place over the course of a period spanning more than eight months.

Conduct of the kind that Alvarado underscores simply does not rise

to the level of pervasiveness or gravity which we have, in the

past, considered indicative of a hostile or abusive work

environment. See Noviello, 398 F.3d at 93-94 (finding retaliatory

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hostile work environment where plaintiff "subjected to [] steady

stream of abuse" over the course of several months, was falsely

accused of misconduct, and was subjected to "'work sabotage,

exclusion, and denial of support'" (quoting O'Rourke v. City of

Providence, 235 F.3d 713, 730 (1st Cir. 2001) (alterations

omitted))); Che, 342 F.3d at 40-41 (upholding jury's finding of

hostile work environment where there was evidence that plaintiff

"received undeserved or excessive discipline" consistently over two

year period, "employees were permitted to scream at [plaintiff]

without punishment," and there was evidence that supervisors used

racially derogatory terms in referring to plaintiff). Nor,

importantly, is it even comparable to conduct that we have

previously deemed insufficient to sustain such a claim. See Colón-

Fontánez, 660 F.3d at 44 (holding appellant could not show hostile

or abusive work environment where supervisor regularly refused to

meet with appellant, yelled at her in front of co-workers, failed

to act to prevent or deter other employees from making derogatory

comments regarding appellant, and limited appellant's movements

around workplace, inter alia).

In sum, even viewing the summary judgment record in the

light most favorable to Alvarado, we believe that the incidents of

allegedly abusive conduct supporting his allegations of a

retaliatory hostile work environment are analogous to the

"episodic, but not frequent . . .; upsetting, but not severe;

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mildly humiliating, but not physically threatening" slights that we

have consistently considered inadequate. Id. at 44-45. We must

accordingly conclude that Alvarado's claim fails as a matter of

law.

3. Loose Ends and Remaining Claims

As the above-outlined points explain, we find that

Alvarado's claim of unlawful retaliation founders at the prima

facie threshold. We consider and address some points raised in

Alvarado's briefing to dispense with any remaining unresolved

issues.

a. Temporal Proximity Between Alvarado's January
2008 EEO Contact and February 2008 Suspension

In preparing for a battle he never gets to fight,

Alvarado sets forth arguments going to the matter of causation.

Here, Alvarado contends that a close temporal proximity between his

protected conduct and the intensification of an alleged hostile

work environment establishes a retaliatory nexus between the two.

See Pérez-Cordero, 656 F.3d at 31 (noting "escalation of a

supervisor's harassment on the heels of an employee's complaints

about the supervisor is sufficiently adverse action to support a

claim of employer retaliation").

We have already held that several of the incidents that

Alvarado claimed combined to create a hostile work environment

lacked such a causal connection because Alvarado did not proffer

evidence that would allow a reasonable jury to find that Colón,

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Zeisky, Ríos, or Rodríguez knew that Alvarado filed EEO charges in

February 2007. Moreover, because the other incidents we have

discussed were not sufficiently pervasive or severe to constitute

a hostile work environment or materially adverse action when

considered in the aggregate, it is irrelevant whether they took

place in close temporal proximity to Alvarado's protected conduct.

Nonetheless, Alvarado introduces a wrinkle into his

causation argumentation which we deem proper to address.

Specifically, in his briefing to this court, Alvarado cursorily

highlights the fact that he received a fourteen-day suspension just

seven days after he communicated with the EEO office regarding the

January 30, 2008 incident in which his late return to the USPS

Bayamón branch prompted Ríos to call Alvarado and, when she did not

reach him, to leave a voicemail message in which she threatened to

call the postal inspectors if he did not promptly return. The

implication here appears to be that, at a minimum, that particular

employment decision -- i.e., the decision to suspend him on

February 6, 2008 -- was made in retaliation for his decision to

contact the EEO office and file preliminary charges against Ríos on

January 30, 2008.

There is merit at the margins of Alvarado's postulation

-- federal anti-retaliation provisions generally prohibit conduct

taken in retaliation for any protected activity, not just a

plaintiff's initial protected action. Cf. Jones v. Walgreen Co.,

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679 F.3d 9, 21 n.8 (1st Cir. 2012). And, based on our prior cases,

we can assume for present purposes that Alvarado's January 2008

communications with the EEO office constituted separate protected

conduct. See, e.g., Calero-Cerezo v. U.S. Dep't of Justice, 355

F.3d 6, 25-26 (1st Cir. 2004). Moreover, we can also assume that

an interval of approximately one week between protected conduct and

his suspension is sufficiently close temporal proximity to warrant

a prima facie inference of a causal connection between the two.

See id.

But, to the extent Alvarado here tries to develop an

argument, he fails because he cannot overcome the defendant's

asserted legitimate, non-retaliatory reason for his suspension.

Specifically, Zeisky and Rodríguez, the supervisors involved in the

decision to suspend Alvarado, attested that they did so in response

to the January 26, 2008 incident in which Ríos, another supervisor,

happened upon a "tub" of undelivered mail for which she believed

Alvarado was responsible. As the Postmaster General correctly

notes, this proffered legitimate reason for issuing Alvarado's

fourteen-day suspension on February 6, 2008 is consistent with the

text of the actual Notice of Suspension that Alvarado received,

which explained that Alvarado was being disciplined for "improper

conduct" and "delay of mail." The Notice further explained that

Alvarado's actions were in violation of several provisions of the

USPS's Employee and Labor Relations Manual, as well as various

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federal statutes. See, e.g., 18 U.S.C. § 1703 (making the unlawful

destruction or delay of "any letter, postal card, package, bag, or

mail" an offense punishable by fine or imprisonment of no more than

five years).

As the Postmaster General has articulated a legitimate

reason for the USPS's decision to suspend Alvarado, Alvarado bears

the ultimate burden to show that this reason is "in fact a pretext

and that the job action was the result of . . . retaliatory

animus." Calero-Cerezo, 355 F.3d at 26. With the exception of

underscoring that he received his suspension a week after filing

EEO charges against Ríos, Alvarado does not present any arguments

or evidence that would allow us to conclude that his employer's

stated legitimate reason masked retaliatory motives. Accordingly,

Alvarado's reliance on any temporal proximity between his January

2008 EEO activity and his suspension is unavailing. See Wright v.

CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (noting

"chronological proximity does not by itself establish causality,

particularly if '[t]he larger picture undercuts any claim of

causation'" (quoting Soileau v. Guilford of Me., Inc., 105 F.3d 12,

16 (1st Cir. 1997))).

b. Other Incidents Regarding Colón

A separate incident involving Colón, we believe, also

merits individual discussion. Nestled in the allegations of

hostility that Alvarado levels against Colón is Alvarado's claim

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that at some unidentified point in 2007, he informed Colón of his

plans to file an EEO complaint against him if Colón did not desist

from his threats to report Alvarado to the postal inspectors.

According to Alvarado, Colón responded by telling him that if he

followed through on his comment and filed a complaint against him,

Colón would then certainly contact the postal inspectors and ask

them to "intervene with" Alvarado.

Colón features among the supervisors that attested, in

EEO affidavits, that they were unaware Alvarado filed EEO charges

against two of his supervisors, Maldonado and Labrador, in February

2007. Because Alvarado did not proffer evidence sufficient to

raise a triable issue of fact as to whether Colón did, in fact,

know of his February 2007 EEO charges, we have already concluded

that Alvarado could not make a prima facie causal connection

between his protected activity and Colón's threats to call the

postal inspectors. But the incident we have just described could

arguably stand alone. Assuming, for present purposes only, that

Alvarado's act of informing Colón that he intended to file EEO

charges against Colón constituted protected conduct within the

McDonnell Douglas framework, then Colón's threat to ask the postal

inspectors to "intervene with" Alvarado if these charges ever

materialized, might plausibly seem to be, at least at first blush,

the kind of action that "could well dissuade a reasonable worker

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from making or supporting a charge of discrimination." Burlington

N., 548 U.S. at 57.

We need not, however, reach any further conclusions on

this detour. Alvarado did not raise an independent claim related

to this incident and has only described Colón's actions in relation

to his theory that he was the victim of a targeted or abusive

hostile work environment brought on in retaliation for protected

actions that he took in February 2007 -- a claim we reject today.

See Taylor v. Am. Chem. Council, 576 F.3d 16, 37 (1st Cir. 2009)

(recognizing argument, but refusing to "reach it" indicating "it is

enough to note that this argument was never made in the appellants'

briefs").

c. Constructive Discharge

Finally, we briefly address Alvarado's constructive

discharge claim, which must also fail as a matter of law. To

establish that he was constructively discharged, Alvarado would

have to show that his "working conditions were 'so difficult or

unpleasant that a reasonable person in [his] shoes would have felt

compelled to resign.'" Roman, 604 F.3d at 42 (quoting Marrero v.

Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002)). This is also

an objective standard, and a plaintiff may not sustain such a claim

by relying exclusively on subjective beliefs. Marrero, 304 F.3d at

28.

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 It is unnecessary to rehash the points we have already

outlined above to find, as we do, that Alvarado's claim of

constructive discharge also falls short of the mark. "To prove a

retaliatory constructive discharge, [a plaintiff] must establish

that his work environment was hostile." Hernández-Torres v.

Intercont'l Trading, Inc., 158 F.3d 43, 48 (1st Cir. 1998). As we

have already explained, Alvarado has not shown that his work

conditions were so severe as to suggest an objectively hostile work

environment. It necessarily follows that Alvarado has similarly

failed to establish that a reasonable person in similar

circumstances would have been compelled to resign his post.

III. Conclusion

For the reasons explained above, we affirm the district

court's grant of summary judgment.

Affirmed.

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