Rivera-Velazquez v. Regan ( 2024 )

United States Court of Appeals
For the First Circuit
No. 22-1356
CARLOS M. RIVERA-VELÁZQUEZ,
Plaintiff, Appellant,
v.
MICHAEL S. REGAN, Secretary of the Environmental Protection
Agency,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl Arias-Marxuach, U.S. District Judge]
Before
Barron, Chief Judge,
Hamilton* and Thompson, Circuit Judges.
Maricarmen Almodovar-Diaz for appellant.
Dennise N. Longo Quiñones, with whom W. Stephen Muldrow,
United States Attorney, Mariana E. Bauzá-Almonte, and Francisco A.
Besosa-Martínez, Assistant United States Attorneys, were on brief,
for appellee.
May 9, 2024
* Of the Seventh Circuit, sitting by designation.
BARRON, Chief Judge. This appeal concerns a grant of
summary judgment to the Administrator for the United States
Environmental Protection Agency (the "EPA") on the employment-
related claims that Carlos M. Rivera-Velázquez ("Rivera") brings
under the Rehabilitation Act of 1973 (the "Rehabilitation Act"),
29 U.S.C. §§ 701 et seq., and Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. §§ 2001-1 et seq. We affirm.
I.
A.
The following facts are not in dispute. Rivera applied
in 2001 for a position as an environmental scientist at the
Caribbean Environmental Protection Division (the "CEDP"), which is
a component of the EPA. A military veteran and army reservist
until 2013, Rivera was approved for a 10-point preference status
in the hiring process on account of his military-service-connected
disability of left trapezius myositis, which is a physical
impairment.
Rivera was interviewed and hired for the position at
CEDP by CEPD's then-Deputy Director José Font and Carlos O'Neil,
who was a supervisor at CEPD. Rivera was hired into a General
Schedule 7 ("GS-7") environmental scientist position. The highest
grade in the "career ladder" for this position was GS-12. Rivera
reached that grade in 2004.
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Rivera was responsible for enforcement and compliance
work related to the National Emissions Standard for Hazardous Air
Pollutants ("NESHAPs"), 40 C.F.R. Part 61 et seq.; the Asbestos
Hazard Emergency Response Act, 15 U.S.C. § 2641 et seq.; and the
Clean Air Act, 42 U.S.C. § 7401 et seq. Throughout his tenure as
an environmental scientist at the CEPD, Rivera made it known to
his supervisors that he was interested in being promoted to a GS-
13 position.
The CEPD was reorganized in 2006 into three branches:
the Multimedia Permits and Compliance Branch, into which Rivera's
responsibilities fit; the Municipal Waters Programs Branch; and
the Resources Conservation and Recovery Act and Remediation
Branch. Around the time of the reorganization, Teresita Rodríguez1
replaced O'Neil as chief of the Multimedia Permits and Compliance
Branch and became Rivera's supervisor.
From September 2009 to November 2010, Rivera served a
tour of active duty in the U.S. Army and was deployed to
Afghanistan. While on active duty, Rivera applied and interviewed
for a position as a criminal investigator within the EPA. The
position had the potential to be graded GS-13. Rivera was not
selected for the position.
For purposes of clarity, we use the full names of Teresita
1
Rodríguez and Nancy Rodríguez throughout.
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Rivera filed a formal complaint in 2011 with the EPA
Office of Civil Rights ("OCR"). He alleged in the complaint that
he had been discriminated against in the hiring process in
violation of the Rehabilitation Act. In that regard, he alleged
that the interviewers, who were from the New York EPA office,
expressed concern about whether his myositis disability would
affect his ability to complete the training that was a requirement
for the position.
The OCR issued a final decision with respect to the 2011
complaint on December 17, 2012. The OCR determined in that
decision that there was no merit to Rivera's complaint because he
had failed to establish a prima facie case of disability
discrimination under the Rehabilitation Act.
After Rivera had returned to CEPD following his tour of
duty in Afghanistan, Teresita Rodríguez began checking in on his
well-being. She asked about his family life and how he was
adjusting to his return to civilian life. In August 2012, the
United States Veteran's Administration diagnosed Rivera with Post-
Traumatic Stress Disorder ("PTSD") related to his military service
in Afghanistan.
Teresita Rodríguez was Rivera's manager until 2011.
Thereafter, she became the Acting Deputy Director of the CEPD.
After Teresita Rodríguez took on this new position, several
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individuals oversaw the Multimedia Permits and Compliance Branch
for rotating, 120-day periods until Nancy Rodríguez was selected
as the permanent chief of the Branch in June of 2014.
Shortly after Nancy Rodríguez took on her new duties,
Rivera and a co-worker raised concerns that Nancy Rodríguez was
not qualified to supervise work related to the Clean Air Act.
Nancy Rodríguez testified that at times she felt threatened by
Rivera because she "was not sure how he would react during . . .
meetings"; that, accordingly, she rarely met with him one-on-one;
and that when they did meet alone, she would ask other supervisors
to "check on her" because she was worried about what might happen.
B.
Rivera complained repeatedly -- and in a variety of
fora -- about the treatment that he had received both from Nancy
Rodríguez after she became the chief of the Branch and from his
other supervisors at CEPD, including Font. Many of those
complaints were informal and regarded a range of what Rivera
contended was mistreatment that he characterized at various times
as harassment and as having created a hostile work environment.
But he also lodged some formal complaints about how he had been
treated by his supervisors.
Rivera made the first of these formal complaints on
September 25, 2014. Rivera did so by filing a grievance through
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the union that represented his bargaining unit at the CEPD. He
alleged in the grievance that Nancy Rodríguez had called him on
his personal cellular phone while he was on sick leave in violation
of the operative collective bargaining agreement. Rivera then
filed a second grievance through the union on October 2, 2014. He
alleged in this grievance that Nancy Rodríguez and Font were
creating a "hostile work environment" and impeding his ability to
advance in his career in violation of the collective bargaining
agreement.
On March 8, 2017, Rivera sought guidance from Barbara
Pastalove, the Chief of Human Resources for EPA Region 2, which
includes Puerto Rico. Rivera sought guidance about his right to
request, pursuant to EPA Order 4711, an investigation into
workplace "harassment" by Nancy Rodríguez.
On March 14, Rivera, through Pastalove, presented a
claim of "harassment" for investigation pursuant to EPA Order 4711.
In the claim, Rivera alleged that Nancy Rodríguez had been creating
a "hostile work environment" since 2014 and that Teresita Rodríguez
and Font had supported Nancy Rodríguez in doing so. Specifically,
Rivera alleged that Nancy Rodríguez had regularly dismissed his
professional input, excluded him from meetings and other
communications, and imposed training requirements on him that
differed from those applied to other inspectors in the branch.
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In April of 2017, Carmen Guerrero, then-CEPD's Director
and the decision maker on Rivera's EPA Order 4711 complaint,
imposed several "interim measures . . . while the factfinding and
decision[-]making process under EPA Order 4711 [were] ongoing."
These measures included Rivera reporting to Jaime Géliga, the
Branch Chief of the Municipal Waters Programs Branch, and Rivera
and Nancy Rodríguez abstaining from direct communication.
Thereafter, throughout 2017, Nancy Rodríguez remained Rivera's
official supervisor and he remained an inspector in the Air
Division. Rivera's work assignments, however, were conveyed to
him via Géliga, to whom Rivera reported on a day-to-day basis.
On April 21, 2017, Rivera filed a second formal complaint
with the EPA's OCR. In this complaint, he alleged that, in
violation of the Rehabilitation Act and Title VII, Nancy Rodríguez
had discriminated against him based on his service-connected
disability and retaliated against him for his prior protected
activity. The conduct at issue in this OCR complaint was
substantially the same as the conduct that Rivera had identified
in his request for an EPA Order 4711 investigation the prior month.
In December 2017, however, Rivera amended this OCR
complaint in relation to his having received a "minimally
satisfactory" rating on his 2017 year-end performance assessment.
Rivera's request to amend the OCR complaint also resulted in a
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second investigation pursuant to EPA Order 4711. This
investigation, which began in January 2018, concerned his
allegations pertaining to the 2017 performance assessment.
In January 2018, Guerrero received the factfinding
report from the 2017 EPA Order 4711 investigation into Rivera's
allegations of "harassment" unrelated to the 2017 performance
assessment. The report included over 50 exhibits as well as
interviews with Rivera and other witnesses. Guerrero concluded
that there was no evidence that there had been harassment of Rivera
by Nancy Rodríguez, Teresita Rodríguez, or Font. Guerrero informed
Rivera of this decision on June 11, 2018. Then, on July 13, 2018,
Rivera was informed that the decisionmaker in the EPA Order 4711
investigation into his allegations pertaining to the 2017
performance assessment did not find any evidence of harassment or
retaliation in relation to Rivera's 2017 performance assessment.
The OCR issued its Final Agency Decision regarding
Rivera's 2017 OCR complaint on April 16, 2018. The decision
concluded that Rivera failed to prove either a violation of Title
VII or a violation of the Rehabilitation Act.
Rivera filed a third formal complaint with the EPA's OCR
on September 17, 2018. In that complaint, Rivera alleged that, in
violation of the Rehabilitation Act and Title VII, he was
retaliated against by Guerrero, then the Director of the CEPD;
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Géliga, who had been supervising Rivera since April of 2017; and
the decisionmaker for the second EPA Order 4711 investigation. A
final decision on this complaint does not appear to be included in
the record.2
C.
During this period of friction between Rivera and his
supervisors, they took various actions towards him. For example,
in both 2014 and 2017 Rivera received a "minimally satisfactory"
rating on one of the elements of a periodic professional assessment
conducted by CEPD. However, on both occasions, Rivera was
ultimately given a "fully successful" rating because he had not
been placed on a performance assistance plan prior to the
assessment, as the collective bargaining agreement for his
bargaining unit required before an employee in that unit could be
given a "minimally satisfactory" rating.
Additionally, on October 1, 2014, CEPD management sent
a referral to the EPA's Office of Inspector General ("OIG") to
investigate whether Rivera had violated various federal criminal
statutes as well as agency rules by intentionally misrepresenting
The Administrator has not invoked Rivera's failure to
2
exhaust the claims made in this complaint as a basis for affirming
the District Court's grant of summary judgment. Cf. Nunnally v.
MacCausland, 996 F.2d 1, 2-4 (1st Cir. 1993) (noting that federal
employees must administratively exhaust Rehabilitation Act claims
before filing suit).
- 9 -
that he was adequately trained and credentialed to conduct NESHAPs
and Clean Air Act inspections. The OIG ultimately concluded that
Rivera did not make any actionable misrepresentations. Rivera was
nonetheless temporarily removed from certain projects while the
OIG investigation was pending.
Then, in August 2018, Rivera was prevented from
participating in a Visible Emissions recertification training.
Rivera had sought preapproval to travel to Texas for the training
after he had not participated in the training when it was offered
in July in Puerto Rico. However, at Guerrero's instruction,
Géliga, as Rivera's acting supervisor, did not approve Rivera to
travel to Texas for the training. Completion of the training was
a requirement for Rivera to perform his duties as an inspector
under the Clean Air Act.
Around this time, but after Guerrero had informed Rivera
of the outcome of her investigation into his claim of harassment
pursuant to EPA Order 4711, she also stated that he would continue
to report to Géliga while Nancy Rodríguez remained his formal
supervisor. Guerrero informed Rivera, however, that he would
report to Géliga only through September 30, 2018. Guerrero also
offered Rivera the option of accepting a lateral transfer to either
the Municipal Waters Programs Branch under Géliga's supervision,
or to the Resources Conservation and Recovery Act and Remediation
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Branch under Teresita Rodríguez's supervision. Guerrero informed
Rivera that if he did not want to transfer, he would return to
reporting to Nancy Rodríguez. Rivera opted to transfer to the
Municipal Waters Programs Branch, effective October 4, 2018.
Finally, in May of 2020, Rivera applied for a temporary
GS-13 air inspector position. A few weeks after he submitted his
application, however, the posting was cancelled. An EPA Human
Resources employee sent an email to Rivera and the three other
people who had applied for the position. The email informed Rivera
and the other three applicants that the position had been cancelled
due to the COVID-19 pandemic and "the subsequent pause on some EPA
field work/inspections."
D.
On January 1, 2019, Rivera filed the operative
complaint, which set forth employment discrimination claims
against the EPA Administrator under the Rehabilitation Act and
Title VII.3 On March 4, 2021, the Administrator moved for summary
judgment as to Rivera's claims. The Administrator also moved on
May 26, 2021, to strike an affidavit that Rivera had filed in his
opposition to the Administrator's summary judgment motion.
3 Andrew Wheeler was the acting Administrator of the EPA when
Rivera initially filed suit. Michael Regan was sworn in as
Administrator on March 11, 2021, and we automatically substituted
him as the appellee. See Fed. R. App. P. 43(c)(2).
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The District Court granted summary judgment to the
Administrator on Rivera's claims and struck the affidavit. Rivera-
Velázquez v. Wheeler, No. 18-CV-1751, 2022 WL 993643, at *24
(D.P.R. Mar. 31, 2022). Rivera then timely filed this appeal.
II.
Although Rivera brought claims under both Title VII and
the Rehabilitation Act, and although the District Court granted
summary judgment to the Administrator on all the claims that Rivera
brought under those statutes, the only portion of the grant of
summary judgment on the Title VII claims that Rivera challenges in
this appeal pertains to his claims for retaliation. Before
addressing Rivera's challenges regarding his retaliation claims
under both that statute and the Rehabilitation Act, however, we
consider his challenges to the grant of summary judgment on his
other Rehabilitation Act claims. In these claims, he alleges
mistreatment by CEPD employees because of their perception that he
had a disability, namely PTSD.
A.
The Rehabilitation Act provides that "[n]o otherwise
qualified individual with a disability . . . shall, solely by
reason of her or his disability, . . . be subjected to
discrimination under any program or activity . . . conducted by
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any Executive agency." 29 U.S.C. § 794(a).4 To succeed in opposing
the Administrator's summary judgment motion as to his non-
retaliation-based Rehabilitation Act claims, Rivera first had to
meet his burden with respect to whether he had established a prima
facie case as to the claims. See Mancini v. City of Providence by
and through Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).
Accordingly, even with respect to his hostile-work-environment-
based Rehabilitation Act claim, Rivera had to put forth evidence
from which a reasonable juror could find that "1) [he] was disabled
within the meaning of the statute; 2) [he] was qualified to perform
the essential functions of the job, either with or without a
reasonable accommodation; and 3) the [CEPD] took adverse action
against [him] because of the disability." Ríos-Jímenez v.
Principi, 520 F.3d 31, 41 (1st Cir. 2008) (citation omitted); see
McDonough v. Donahoe, 673 F.3d 41, 49-50 (1st Cir. 2012) ("Because
the first step in any claim under the Rehabilitation Act is
establishing a disability covered by the Act and McDonough has
4Although Rivera, as an employee of a federal agency, brings
his claims under the Rehabilitation Act rather than the Americans
with Disabilities Act ("ADA"), "the liability standards are the
same under each statute," Quiles-Quiles v. Henderson, 439 F.3d 1,
5 (1st Cir. 2006), and "the case law construing the ADA generally
pertains equally to claims under the Rehabilitation Act," Calero-
Cerezo v. U.S. Dep't of Just., 355 F.3d 6, 19 (1st Cir. 2004).
- 13 -
failed to show that she was disabled, her hostile work environment
claim must fail.").
A plaintiff can show that he was "disabled" within the
meaning of the Rehabilitation Act in various ways. The plaintiff
can do so by showing that he had an actual disability, which is "a
physical or mental impairment that substantially limits one or
more major life activities," 42 U.S.C. § 12102(1); that he had a
record of disability, which is "a record of" "a physical or mental
impairment that substantially limits one or more major life
activities," id.; or that he was "regarded as having" "an actual
or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity,"
id. at §§ 12102(1)(C), 12102(3)(A); see also 29 U.S.C. § 705(9)(B)
(providing that the term disability as used in the Rehabilitation
Act has "the meaning given it in [the ADA, 42 U.S.C. § 12102]").
In opposing the Administrator's motion for summary
judgment on the non-retaliation-based Rehabilitation Act claims,
Rivera identified several specific employment actions that he
claimed that Nancy Rodríguez and Teresita Rodríguez had taken
against him in violation of the statute because they "regarded
[him] as" having a disability, namely PTSD.5 Rivera also claimed
5Because the specific details of the asserted adverse actions
"have no bearing on the final outcome, we need not discuss the
specifics." McDonough, 673 F.3d at 46 n.8.
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that his supervisors violated the Rehabilitation Act by subjecting
him to a "hostile work environment" because they "regarded [him]
as" having a disability.
The District Court determined, however, that Rivera had
failed to put forth evidence that permitted a reasonable factfinder
to determine that he was disabled within the meaning of the
Rehabilitation Act on any of the grounds for so determining,6 and
so had failed to establish the first element of a prima facie case.
Rivera-Velázquez, 2022 WL 993643, at *17–19. On that basis, the
District Court granted summary judgment to the Administrator on
all of Rivera's non-retaliation-based Rehabilitation Act claims.
Reviewing de novo, while considering "the evidence in the light
most agreeable to [Rivera], giving [him] the benefit of any and
all reasonable inferences," Murray, 789 F.3d at 25 (citation
omitted), we agree with the District Court's decision.
6 The District Court's exact language was that Rivera "failed
to show" that he was disabled. Rivera-Velázquez, 2022 WL 993643,
at *18. In analyzing this claim, the District Court did not
expressly refer to the summary judgment standard or explain that
Rivera could make a prima facie showing by pointing to evidence in
the record that, if unrebutted, could support a reasonable juror's
inference in his favor on each element of his claim. See Tex.
Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981).
However, the District Court's analysis was entirely consistent
with the application of the proper standard, and in any event, our
review is de novo. Murray v. Kindred Nursing Ctrs. W. LLC, 789
F.3d 20, 25 (1st Cir. 2015).
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B.
Rivera does not dispute that there is no basis for
finding him disabled on the ground that he had "a physical or
mental impairment that substantially limits one or more major life
activities" or that the defendants possessed a record of his having
such an impairment. 42 U.S.C. § 12102(1). His challenge on appeal
thus focuses on the District Court's ruling that Rivera had not
met his burden to "show that CEPD management 'regarded him as
disabled.'" In so ruling, the District Court noted that "Nancy
Rodríguez testified" that at the relevant times "she was not aware
[Rivera] had a medical condition that may affect him" and that
Rivera admitted that none of his supervisors "ever made comments
alluding to him being mentally disabled, or that he was unreliable
due to mental instability." Rivera-Velázquez, 2022 WL 993643, at
*18. The District Court also concluded that Nancy Rodríguez's and
Teresita Rodríguez's behavior towards Rivera, as reflected in the
record, was "insufficient to show that Rivera['s] employers
'regarded [him] as disabled' nor 'that he was perceived as unfit
for a broad range of jobs as a result of his mental condition.'"
Id. (quoting Acevedo v. Potter, No. 08-1468, 2011 WL 7092592, at
- 16 -
*9 (D.P.R. Mar. 23, 2011), aff'd sub nom. Acevedo v. Donahoe, 448
F. App'x 78 (1st Cir. 2012)).7
Rivera argues that the District Court erred in so ruling,
as he contends that he has put forth evidence from which a
reasonable juror could find that Nancy Rodríguez and Teresita
Rodríguez regarded him as having PTSD. Rivera does not contend
that there is any direct evidence that either Nancy Rodríguez or
Teresita Rodríguez knew he suffered from PTSD. Instead, Rivera
points to evidence in the record that Teresita Rodríguez stated
that she was worried that he had reported back to work so quickly
after returning from Afghanistan; inquired whether he "might need
. . . to take a break or some time out"; and asked him questions
like, "How are you feeling today? Do you want to take some time
off? Everything OK with the family? With the kids? With your wife?"
Teresita Rodríguez also stated in a deposition that Rivera
"demonstrate[d] that he needed [extra] attention" upon his return
from Afghanistan and that she believed "it was the result of him
having come back to his family, to the work area."
7 We emphasize that Rivera was not required to show that his
supervisors regarded him "as unfit for a broad range of jobs as a
result of his mental condition," Rivera-Velázquez, 2022 WL 993643,
at *18, to satisfy his burden to show that he was regarded as
having a disability. See Mercado v. Puerto Rico, 814 F.3d 581,
587 (1st Cir. 2016).
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In addition, Rivera argues that a juror could reasonably
find that Nancy Rodríguez regarded him as having PTSD based on the
evidence in the record. Specifically, Rivera points to the
evidence in the record that she told the OIG investigator that she
perceived Rivera as "aggressive," "felt threatened and/or
intimidated by him," "was not sure how he would react during . . .
meetings," and, accordingly, rarely met with him one-on-one. She
further told the OIG investigator, Rivera notes, that when she did
meet with Rivera one-on-one, she would ask other supervisors to
"check on her" because she was worried about what might happen.8
The District Court acknowledged all the evidence that
concerned the conduct and comments by Teresita Rodríguez and Nancy
Rodríguez that Rivera highlights on appeal. The District Court
nonetheless concluded that this evidence, even when considered in
combination, did not suffice to show that either of these two
supervisors regarded Rivera as having PTSD. In this regard, the
District Court explained that "'[a] supervisor's expression of
concern for an employee's health or wellbeing does not necessarily
mean that the supervisor—and by extension, the employer—regards
the employee as having an impairment.'" Rivera-Velázquez, 2022 WL
8 To the extent Rivera claims that Font contributed to an
allegedly discriminatory hostile work environment, Rivera does not
make any argument that there is evidence supportably showing that
Font regarded him as disabled.
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993643, at *18 (quoting Saffer v. Bechtel Marine Propulsion Corp.,
No. 19-cv-25, 2020 WL 5363322, at *6 (W.D. Pa. Sept. 8, 2020)).
In addition, the District Court explained that neither of the two
supervisors "ever made comments alluding to [Rivera] being
mentally disabled, or that he was unreliable due to mental
instability." Id.In arguing that the District Court erred in so ruling,
Rivera first contends, with respect to Nancy Rodríguez, that "[h]er
'accumulated myths and fears' and stereotyping of Rivera impacted
on the manner she related to him as supervisor to such an extent
that" she avoided meeting with him individually. Rivera attempts
to support this contention by quoting a passage from School Board
of Nassau County, Florida v. Arline. See 480 U.S. 273, 284 (1987)
("[S]ociety's accumulated myths and fears about disability and
disease are as handicapping as are the physical limitations that
flow from actual impairment."). But Rivera fails to identify any
evidence to support the conclusory assertion that Nancy
Rodríguez's behavior was based on disability-based "myths and
fears" and "stereotyping," and Arline does not itself suggest that
a record such as this one suffices to show that an employer was
relying on "myths and fears" and "stereotyping" of that problematic
kind.
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Rivera separately asserts that the District Court's
ruling cannot stand because the District Court ignored the evidence
described above and instead simply credited Nancy Rodríguez's
statement that she did not know about Rivera's PTSD diagnosis.
But that is not an accurate account of the District Court's
reasoning. As we have explained, the District Court referred to
the instances highlighted by Rivera as evidence of Nancy
Rodríguez's regarding him as having PTSD before determining that
those instances "[were] insufficient to show that Rivera['s]
employers 'regarded [him] as disabled[.]'" Rivera-Velázquez, 2022
WL 993643, at *18. There is no basis for concluding, therefore,
that the District Court overlooked any of this evidence.
Finally, Rivera asserts that "a factual dispute exists
as to whether [his] supervisors regarded [him] as having a mental
disability." But Rivera develops no argument, nor cites to any
authority, in support of that conclusory assertion. And his
failure on that score is particularly significant because the U.S.
Equal Employment Opportunity Commission's interpretive guidance
for the "regarded as" definition of "disabled" notes the
importance of "distinguish[ing] between conditions that are
impairments and physical, psychological, environmental, cultural,
and economic characteristics that are not impairments," and
instructs that the definition "does not include common personality
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traits such as poor judgment or a quick temper where these are not
symptoms of a mental or psychological disorder." 29 C.F.R. Pt.
1630, App.
For these reasons, we conclude that there is no merit to
Rivera's challenge to the District Court's ruling that Rivera
failed to meet his burden to satisfy the first element of his prima
facie case with respect to his Rehabilitation Act claims predicated
on his having been regarded as having a disability. For, while
the requisite showing may be made by circumstantial evidence that
permits reasonable inferences, Rivera identifies no direct
evidence that either Nancy Rodríguez or Teresita Rodríguez knew,
at the relevant times, that Rivera had been diagnosed with PTSD
and the evidence in the record on which Rivera relies to make his
case would require "unsupported speculation" as to what was in the
minds of the supervisors when they made the comments that they
made and acted towards him as they did. Smith v. Jenkins, 732
F.3d 51, 76 (1st Cir. 2013) (quoting Shafmaster v. United States,
707 F.3d 130, 135 (1st Cir. 2013)). Accordingly, we reject
Rivera's challenge to the grant of summary judgment to the
Administrator as to these claims.
III.
There remains to address Rivera's challenge to the
District Court's grant of summary judgment to the Administrator on
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Rivera's retaliation claims under both the Rehabilitation Act and
Title VII. The Rehabilitation Act "prohibits retaliation against
employees for complaining about violations of the Act." Quiles-
Quiles, 439 F.3d at 8. Similarly, Title VII prohibits retaliation
for "any practice made an unlawful employment practice by [Title
VII]." 42 U.S.C. § 2000e–3(a). We begin with Rivera's
Rehabilitation Act-related challenge before turning to his Title
VII-related one.
A.
To prevail on his retaliation claims under the
Rehabilitation Act, Rivera needs to show as to each that he: "(1)
was engaged in protected conduct; (2) suffered an adverse
employment action; and (3) there was a causal connection between
the protected conduct and the adverse action." Colón-Fontánez v.
Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011). And to
survive summary judgment on the claims, Rivera must make out a
prima facie case of retaliation as to each claim by pointing to
evidence in the record that could support each of the three
elements of such a prima facie case. See Ponte v. Steelcase Inc.,
741 F.3d 310, 321 (1st Cir. 2014).
As to the "protected conduct" element, we understand
Rivera to be relying on appeal on the evidence of his having
engaged in the following discrete instances of protected conduct:
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the formal OCR complaints that he filed in 2011, 2017 and 2018;
the claims of "harassment" that led to the "two EPA Order 4711s,
initiated on March 14, 2017 and January 12, 2018 respectively,"
Rivera-Velázquez, 2022 WL 993643, at *19; and his "[i]nformal
protests of discriminatory employment practices such as
complaining to management, 'writing critical letters to customers,
protesting against discrimination by industry or by society in
general, and expressing support of co-workers who have filed formal
[charges,]'" id. (quoting Garcia-Garcia v. Costco Wholesale
Corp., 878 F.3d 411, 425–26 (1st Cir. 2017)). We also understand
Rivera to be relying on the evidence of the grievances that he
filed through his union in 2014 about his alleged mistreatment by
Nancy Rodríguez and Font.
As to the "adverse employment action" element, Rivera
relies on appeal on evidence of a variety of discrete actions taken
by his supervisors at CEPD. Those actions were that the
supervisors: (1) failed to promote him to a GS-13 position through
a noncompetitive process;9 (2) de facto demoted him by "forc[ing]"
him to transfer to the Municipal Waters Programs Branch; (3)
9The District Court also addressed the fact that Rivera
requested a desk audit in 2016 to determine whether his current
position was properly graded as GS-12. Rivera-Velázquez, 2022
993643, at *11. Rivera does not argue on appeal that the desk
audit decisionmaker's conclusion that Rivera's position was
properly graded constitutes an adverse action.
- 23 -
cancelled a temporary GS-13 position for which he had applied in
2020; (4) prevented him from completing a Visible Emissions
training; and (5) initiated an OIG investigation against him. We
note that Rivera's briefing on appeal also alludes to other actions
by his supervisors, such as some of the conduct that grounds his
hostile work environment claim. But he has failed to develop,
both below and on appeal, any argument that any of these actions,
whether considered individually or collectively, constituted an
adverse action for purposes of the retaliation claims, let alone
how any of these actions not only rises to the level of
constituting an adverse action but also has a causal link to any
specific protected conduct that he identifies. Thus, any such
argument is waived. See United States v. Slade, 980 F.2d 27, 30
(1st Cir. 1992) ("It is a bedrock rule that when a party has not
presented an argument to the district court, she may not unveil it
in the court of appeals."); United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
Finally, as to the "causation" element, Rivera relies on
appeal primarily on what he contends is sufficient evidence of
temporal proximity between the protected conduct that he
identifies and the adverse action that grounds each of his claims
- 24 -
of retaliation. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st
Cir. 1994) ("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."). But he also appears to
rely on evidence that he contends suffices to show that his
supervisors' stated reasons for certain of the adverse actions
were pretextual.
Reviewing the District Court's decision de novo, see
Murray, 789 F.3d at 25, we conclude that Rivera has failed to
establish a prima facie case for his retaliation claims under the
Rehabilitation Act. We thus conclude that there is no merit to
his challenge to the grant of summary judgment to the Administrator
with respect to Rivera's retaliation claims under that statute.
To explain that conclusion, we examine, with respect to each of
the claimed adverse actions, whether Rivera has made out a prima
facie case of retaliation under the Rehabilitation Act.
1.
We start with Rivera's attempt to ground his prima facie
case of retaliation on the allegation that his supervisors at CEPD
took an adverse action against him in retaliation for his protected
conduct by failing to promote him to a GS-13 position. Rivera
asserts that the District Court erred in concluding that this
attempt to ground his prima facie case failed, see Rivera-
- 25 -
Velázquez, 2022 WL 993643, at *19 (citing Velez v. Janssen Ortho,
LLC, 467 F.3d 802, 807 (1st Cir. 2006)), because the District Court
failed to address his argument that the refusal of his supervisors
to promote him to that position inhered in their refusal to create
a GS-13 position for him in the first place.
To support this contention, Rivera asserts that EPA
regulations allow supervisors to create positions for employees
deserving of merit-based promotions. He then contends that his
supervisors retaliated against him by failing to "trigger[] the
available EPA[] Merit Promotion Regulations designed to recognize
and retain employees that have exceeded the employer's
expectations." The District Court concluded, however, that no
reasonable juror could find on this record that Rivera's
supervisors had the power to create a GS-13 position just for him.
We agree. We thus reject this ground for reversal, even assuming
that Rivera is correct in arguing that his supervisors' failure to
create the GS-13 position for him in and of itself constituted an
adverse action.
As the District Court noted, Font, Nancy Rodríguez, and
Teresita Rodríguez all testified to not having "the authority to
promote [Rivera] or single-handedly create a GS-13 position for
him," Rivera-Velázquez, 2022 WL 993643 at *21, and Rivera does not
point to any regulation in the record that would have allowed them
- 26 -
to create such a position for him. Moreover, Pastalove, the Chief
of Human Resources for EPA Region 2, which includes Puerto Rico,
stated in her unrebutted testimony that before a GS-13 position
could be created for a merit promotion, "[t]here would be
consultation with Human Resources" and "big-picture discussions
about where [within CEPD the position] should be located."
Pastalove explained in her testimony that the "selecting official"
in consultation with other decisionmakers would have "identified
the selection criteria . . . for eligibility[] to apply for the
job," and that those criteria would be announced so that those who
met the criteria could apply. Pastalove added in her testimony
that candidates cannot be "pre-selected" for merit promotions but
must apply for a promotion to a position once it is posted. She
testified too, that a supervisor cannot create a GS-13 position
simply because the supervisor is of the view that an employee
deserves a GS-13 promotion.
In attempting to show that there is nonetheless a genuine
issue of material fact in the relevant respect, Rivera points first
to what he contends is evidence of his supervisors' varying
explanations for his not having been promoted to a GS-13 position.
He emphasizes that none of those explanations concerned the
supervisor lacking the authority to have created such a position
for him. For example, Rivera asserts that Teresita Rodríguez told
- 27 -
him that he needed more training before he could be promoted to a
GS-13 position but that she later said that "she would only
consider recommending his promotion if[] Nancy Rodríguez
recommended it" and if he stopped complaining about Nancy
Rodríguez.
Rivera's account of Teresita Rodríguez's comments
regarding whether she would "recommend" Rivera for a promotion
into an available position, however, is not inconsistent with
either Pastalove's explanation of the merit-promotion process or
the testimony by Rivera's supervisors that they could not create
a GS-13 position for him. So, we do not see how the evidence of
the comments by Teresita Rodríguez suffices to a create a genuine
dispute about whether Rivera's supervisors did have the authority
to create a GS-13 position for him in the manner that he contends
they did. Moreover, Rivera does not assert that, insofar as the
adverse action to which he was subjected constituted a refusal to
promote him to a GS-13 position, the refusal took the form of
denying him a promotion to a GS-13 position that existed and to
which he had applied. Rather, he contends that refusal took the
form of his supervisors refusing to create such a position for
him. Thus, the evidence that he identifies about the reasons that
his supervisors gave for not recommending him for a promotion do
not advance his cause, as that evidence could not supportably show
- 28 -
that Rivera's supervisors had the authority to create such a
position.
Rivera does separately point to an unsworn declaration
by Francisco Claudio, who worked with Rivera in the Compliance and
Enforcement Branch of the CEPD. The declaration states that on an
unspecified date Claudio "was granted the GS-13 level through a
merit increase process" that "was not competitive" and that Claudio
believed there were "EPA employees in New York that perform the
same duties but with less years of experiences than . . . Rivera,
that [were] classified as GS-13." But this declaration makes
representations about Claudio's beliefs regarding employees in a
different EPA office and his understanding of the process through
which he was promoted being "not competitive." And we do not see
how representations about the New York Office provide a basis from
which a reasonable juror could infer that Rivera's supervisors in
Puerto Rico could create a GS-13 position just for him. Nor do we
see how Claudio's representations about his own promotion provide
any basis for concluding that the supervisors could have created
the position that Rivera claims that they could have at the time
that Rivera alleges that his supervisors were retaliating against
him. Cf. González-Bermúdez v. Abbott Lab'ys P.R. Inc., 990 F.3d
37, 47–48 (1st Cir. 2021) (retaliatory failure-to-promote
plaintiff could not rely on the fact that other employees were
- 29 -
"offered promotions without having to compete with external
candidates" where policy regarding external competition changed a
few months before the period during which the plaintiff alleged
retaliation).
Thus, based on the arguments that Rivera has made to us,
we cannot say the District Court erred in ruling that Rivera failed
to meet his burden to establish a prima facie case insofar as
Rivera sought to do so based on his having been denied a GS-13
promotion by his supervisors' failure to create a GS-13 position
for him. If he is to show that the District Court erred in ruling
that he had failed to make a prima facie case of retaliation under
the Rehabilitation Act, therefore, he must identify some other
adverse action to ground it.
2.
Rivera does argue that, contrary to the District Court's
ruling, he made out a prima facie case of retaliation in violation
of the Rehabilitation Act based on the evidence in the record that
he contends supportably shows that he "was forced to accept a
transfer to the [Municipal] Water[s Programs] Division with
significantly different responsibilities that was less conducive
to career advancement." Rivera appears to be referring to the
choice Guerrero gave him, after concluding her investigation into
his EPA Order 4711 complaint of "harassment," between transferring
- 30 -
to one of the other branches of CEPD or returning to Nancy
Rodríguez's supervision.
Rivera does characterize his transfer to the Municipal
Waters Programs Branch as his having been "forced" into a "de facto
demotion." The undisputed record shows, however, that Guerrero
stressed that Rivera "had no obligation" to accept a transfer.
Rivera nonetheless asserts that the "choice" was a false one
because "being supervised by Nancy Rodríguez was not an option
given the history of harassment, retaliation and discrimination."
But he fails to develop any argument that, because of that history,
requiring him to continue to work for Nancy Rodríguez would itself
have constituted a retaliatory adverse action.
Thus, we do not see how Rivera has put forth evidence
from which a reasonable juror could find that he was subjected to
an adverse action when Guerrero presented him with the option of
taking a position in the Municipal Waters Programs Branch.10 Cf.
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir.
10 Rivera also states in the facts section of his brief that
he "was disqualified to continue his work at the Air Division"
because he was unable to complete his Visible Emissions training.
He does not point, however, to any facts in the record that
supportably show that he could not have remained there while he
waited to recertify. In any event, we conclude below that he has
failed to identify record support from which a reasonable juror
could find that the cancellation of this Visible Emissions training
constituted an adverse action that was linked to any protected
conduct.
- 31 -
2008) ("[I]n order for a resignation to constitute a constructive
discharge, it effectively must be void of choice or free will.").
And this conclusion draws further support from the fact that, as
the Administrator notes, Rivera admitted that in October 2016 he
had requested a reassignment to the Municipal Waters Programs
Branch because he believed the move would improve his "career
ladder opportunities."
3.
Rivera also argues that, contrary to the District
Court's ruling, he has made out a prima facie case of retaliation
under the Rehabilitation Act based on his having applied, along
with three other people, for a temporary GS-13 air inspector
position in early 2020 that was cancelled within two weeks of his
having submitted his application. In fact, Rivera contends, the
District Court failed to address the cancellation of that position,
which he argues was an adverse action taken in retaliation against
him. We may affirm the District Court's grant of summary judgment
"on any ground made manifest in the record," however. Am. Steel
Erectors v. Loc. Union No. 7, Int'l Ass'n of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, 815 F.3d 43, 63 (1st Cir.
2016). And Rivera makes no argument as to how a juror could
reasonably find a causal nexus between the cancellation of the
position and any of his protected conduct.
- 32 -
In that regard, we note that the record shows that he
made the last of his formal complaints about mistreatment by his
supervisors -- whether through the filing of complaints with the
OCR or the presentation of claims pursuant to EPA Order 4711 -- in
2018. In other words, he did so years before the cancellation of
the relevant GS-13 position. Thus, there is no basis for inferring
causation based on a temporal link between this claimed adverse
action and any of those protected activities. See Ahern v.
Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) ("Without some
corroborating evidence suggestive of causation" even a "gap of
several months cannot alone ground an inference of a causal
connection between a complaint and an allegedly retaliatory
action."). Nor does Rivera identify any other evidence that could
support such a link.
Rivera also develops no argument as to how any of his
informal complaints constituted not only protected conduct but
also protected conduct that caused the cancellation of the position
in 2020. So, any such argument is waived. See Zannino, 895 F.2d
at 17.
4.
Rivera's attempt to ground his prima facie case of
retaliation on the initiation of the 2014 OIG investigation into
- 33 -
his credentials similarly fails.11 The District Court ruled that
there was no basis for inferring that CEPD management's referral
of Rivera to the OIG for investigation was in retaliation for the
only formal complaint about his supervisors' conduct that he made
before the OIG investigation. And we agree, given the three-year
time lag between the OIG referral and Rivera's 2011 complaint, as
well as Rivera's failure to identify any basis other than temporal
proximity for connecting the OIG referral to his protected
activity. See Ahern, 629 F.3d at 58. Nor is there any
basis -- quite obviously -- for inferring that the OIG referral
was spurred by the 2017 and 2018 complaints that Rivera filed under
EPA Order 4711 and with OCR, given that he filed those complaints
years after the OIG referral occurred. See Pearson v.
Massachusetts Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013)
11 Rivera is correct that the District Court erred insofar as
it granted summary judgment to the Administrator on the ground
that none of the alleged adverse actions altered the terms or
conditions of Rivera's employment. See Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 64 (2006) (so holding in the context
of Title VII retaliation); Carmona-Rivera v. Puerto Rico, 464 F.3d
14, 20 (1st Cir. 2006) (holding, per Burlington Northern, that an
adverse action for purposes of a claim of retaliation under the
Rehabilitation Act is an action that "well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination" (quoting Burlington N., 548 U.S. at 68)). However,
this error does not preclude us from affirming the District Court's
alternative basis for granting summary judgment -- Rivera's
failure to show any causal connection between the initiation of
the OIG investigation and any protected conduct in which he had
engaged.
- 34 -
("Causation moves forward, not backwards, and no protected conduct
after an adverse employment action can serve as the predicate for
a retaliation claim.").
Insofar as Rivera means to argue that he may rest his
prima facie case on the OIG referral because it occurred on October
1st of 2014 and he had filed a union grievance against Nancy
Rodríguez on September 25th of that year, we similarly see no basis
for overturning the District Court's ruling against him. Rivera
understandably emphasized at oral argument that the two events
occurred close in time.12 But, as the Administrator pointed out
in a post-argument 28(j) letter, the September 25 union grievance
did not attempt to identify any discriminatory conduct prohibited
under the Rehabilitation Act. And, in response to that letter,
Rivera agreed that was the case. Thus, because protected conduct
is limited "to action taken to protest or oppose statutorily
prohibited discrimination," the union grievance cannot be the
adverse action grounding the asserted prima facie case of
retaliation under the Rehabilitation Act. Fantini v. Salem State
Coll., 557 F.3d 22, 32 (1st Cir. 2009) (citation omitted).
12 Rivera also refers to a second union grievance filed on
October 2, 2014. However, that grievance was filed after the OIG
referral was made on October 1, 2014. See Pearson, 723 F.3d at
42.
- 35 -
Finally, we do not see how Rivera can show that he
satisfied the causation element of the prima facie case with
respect to the OIG referral based on his informal complaints. And
that is because Rivera fails to argue, with respect to any specific
informal complaint, that it constituted protected conduct and that
the OIG referral was made with sufficient temporal proximity to it
to give rise to an inference of causation. See Zannino, 895 F.2d
at 17. Thus, even if Rivera were right in arguing that the record
supportably shows that Font and Teresita Rodríguez "insisted on
referring Rivera to the OIG despite knowing that he had 90
[percent] of the credentials and . . . had not engaged in any
fraudulent actions," his challenge still would lack merit, as he
fails to identify any causal link between the decision to refer
him to the OIG and any protected conduct -- whether undertaken
formally or informally -- in which he engaged. Cf. Theidon v.
Harvard Univ., 948 F.3d 477, 496 n.29 (1st Cir. 2020) ("Pretext
and discriminatory animus are often lumped together in Title VII
analysis, but the plaintiff's burden at this stage comprises two
separate tasks.").
5.
Rivera makes one last argument as to why we must conclude
that the District Court erred in ruling that he had not met his
burden to establish a prima facie case of retaliation under the
- 36 -
Rehabilitation Act. Here, he relies on what the record shows with
respect to the cancellation of his Visible Emissions training in
August 2018.
The District Court noted that, with respect to the
cancellation of that training, "the closest protected activity
. . . would be his 2017 EEO Complaint filed on April 21, 2017."
Rivera-Velázquez, 2022 WL 993643, at *24. But Rivera filed that
complaint more than a year before he was not approved for the
training. Thus, there is no basis for inferring a causal link
between the two based on timing alone. See Ahern, 629 F.3d at 58.
Rivera also develops no other argument for linking the cancellation
of the Visible Emissions training to any of the protected conduct
in which he engaged.
Rivera does argue that the cancellation of his Visible
Emissions training can nonetheless ground a prima facie case of
retaliation under the Rehabilitation Act. He contends that is so
because of the cancellation's temporal proximity to the email from
Guerrero on June 11, 2018, that informed Rivera that Guerrero had
concluded the investigation of Rivera's 2017 complaint under EPA
Order 4711 and found no merit to it. Rivera does not offer any
argument, however, as to why Guerrero's sending of the email should
be the relevant starting point from which to calculate temporal
proximity. And Rivera's failure to offer any such argument is
- 37 -
concerning given that the relevant time span for determining
temporal proximity is between when an employer learns of protected
activity and when an adverse action is taken. See Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (characterizing as
"implausible" the suggestion that the date of "the EEOC's issuance
of a right-to-sue-letter -- an action in which the employee takes
no part" should count as the relevant "protected activity of the
employee" for the purpose of determining temporal proximity).
Rivera has thus waived any argument as to why we should determine
temporal proximity from the date of Guerrero's decision. See
Zannino, 895 F.2d at 17.
B.
While Rivera did not advance any arguments in his
briefing to us as to how the District Court erred in granting
summary judgment to the Administrator on Rivera's Title VII claims,
Rivera filed a 28(j) letter after oral argument in which he stated
that, with respect to the union grievance that closely preceded
the OIG referral, his "allegations and arguments below[] show that
it is pellucidly clear that [he] claimed the protections afforded
by the anti-retaliation provisions under Title VII of the Civil
Rights Act, not the Rehabilitation Act." Rivera therefore appears
to be arguing, via that letter, that the District Court erred in
concluding that the OIG referral was not causally linked to his
- 38 -
union grievance, which, assertedly, constituted protected conduct
under Title VII. See Marrero v. Goya of P.R., Inc., 304 F.3d 7,
22 (1st Cir. 2002) (explaining that to make out a prima facie case
of retaliation under Title VII, a plaintiff must show "that (1)
she engaged in protected conduct under Title VII; (2) she suffered
an adverse employment action; and (3) the adverse action was
causally connected to the protected activity").
Setting aside the problem with raising an argument for
the first time in this manner, see Hernandez Lara v. Barr, 962
F.3d 45, 52 n.10 (1st Cir. 2020) ("Rule 28(j) enables a party to
apprise the court of 'pertinent and significant' legal authority
that comes to its attention 'after oral argument but before
decision,' not to introduce new arguments that the party failed to
raise in its brief." (quoting Fed. R. App. P. 28(j))), the argument
lacks merit. There is no indication in the record that, prior to
the OIG referral, Rivera complained about discrimination on any of
the bases protected by Title VII -- namely "race, color, religion,
sex, or national origin," 42 U.S.C. § 2000(e)-2(a). Nor does any
such argument appear anywhere in his briefing on appeal, which
does not include any reference to Title VII. Thus, no reasonable
juror could conclude that the union grievance constituted
protected conduct under Title VII. See Rojas v. Roman Cath.
Diocese of Rochester, 660 F.3d 98, 107–08 (2d Cir. 2011)
- 39 -
("[I]mplicit in the requirement that the employer have been aware
of the protected activity is the requirement that it understood,
or could reasonably have understood, that the plaintiff's
complaint was directed at conduct prohibited by Title VII."
(cleaned up) (emphasis in original)).
IV.
There is one loose thread to tie up: Rivera's challenge
to the District Court's decision to grant the defendant's motion
to strike his post-discovery affidavit. But even if we were to
assume that there was merit to Rivera's argument that the District
Court erred in striking the affidavit -- and we do not suggest
that the argument has merit -- he still would have to show that
the error provided a basis for overturning the District Court's
summary judgment ruling. Rivera has not adequately explained,
however, why the contents of the affidavit create a genuine issue
of disputed fact as to any issue of fact that bears on our reasons
for affirming the grant of summary judgment.
Rivera does note that the affidavit included an
assertion that the "harassment" at issue in this case "caused him
greater emotional damages than his experience in Afghanistan," an
explanation of his "reasons for not applying to . . . a GS-13
position announced in January 2020," and an assertion that only
one CEPD employee was qualified for that position. But we do not
- 40 -
see -- and Rivera does not explain -- how those assertions, or any
others contained in the affidavit, would have allowed him to carry
his burden to make out a prima facie case that he was discriminated
against in violation of the Rehabilitation Act or Title VII, given
the problems that we have identified above with each of his
attempts to show that he had done so. Thus, we need not further
review the District Court's decision to strike the affidavit to
affirm the grant of summary judgment to the Administrator on the
Rehabilitation Act and Title VII claims before us in this appeal.
V.
For the reasons discussed above, we affirm the District
Court's grant of summary judgment on Rivera's claims against the
Administrator for discrimination and retaliation.
The parties shall bear their own costs.
- 41 -