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.
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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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