Filed: Jul. 27, 2018
Latest Update: Mar. 03, 2020
Summary: came with it before either Micheo or Rodríguez began working in 6 the BioSystem Program as field sales representatives. The court may, disregard any statement of fact not supported, by a specific citation to record material, properly considered on summary judgment.Puerto Rico law claims.
United States Court of Appeals
For the First Circuit
No. 17-1431
MARISOL MICHEO-ACEVEDO,
Plaintiff, Appellant
v.
STERICYCLE OF PUERTO RICO, INC.,
Defendant, Appellee,
ANGEL RIVERA-MORALES; OSVALDO SANTANA-RIVERA,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Juan Rafael González-Muñoz, with whom Carlos M. Vergne-
Vargas, Juan C. Nieves-González, and González-Muñoz Law Offices,
PSC were on brief, for appellant.
Tacy F. Flint, with whom Luis D. Ortiz Abreu, Javier G.
Vázquez Segarra, Goldman Antonetti & Córdova, LLC, Brian J. Gold,
Natalie C. Chan, and Sidley Austin LLP were on brief, for
appellant.
July 27, 2018
BARRON, Circuit Judge. Marisol Micheo-Acevedo
("Micheo") appeals an order granting summary judgment to
Stericycle of Puerto Rico ("Stericycle") and other defendants on
her claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. ("Title VII"), and dismissing without
prejudice her related pendent Puerto Rico law claims. We affirm.
I.
Stericycle's services include managing medical waste for
hospitals. In April 2012, Stericycle hired Micheo as a field sales
representative. A little less than a year later, in March 2013,
Stericycle launched a program called "BioSystem," to which Micheo
was then assigned in March 2013. Under that program, through
contracts with hospitals, Stericycle installed containers to
dispose of sharp, biomedical objects like syringes.
Stericycle terminated Micheo's employment in January
2014. Micheo brought suit against the company and two of its
managers in the District Court for the District of Puerto Rico on
February 3, 2015. She alleged violations of Title VII, the
Americans with Disabilities Act, 48 U.S.C. §§ 12101, et seq., the
Family and Medical Leave Act, 29 U.S.C. §§ 2601-54, and six Puerto
Rico laws, P.R. Laws Ann., tit. 29, §§ 146 et seq., 185(a) et seq.,
194 et seq., 1321 et seq.; P.R. Laws Ann. tit. 1, §§ 501 et seq.,
511 et seq.
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On July 11, 2016, the defendants filed a motion for
summary judgment as to all of Micheo's claims. Micheo then filed
a motion to strike the defendants' summary judgment motion pursuant
to Rule 56 of the Local Rules for the District Court of Puerto
Rico ("Local Rule 56"), which requires that such motions provide
citations to supporting record evidence. The District Court denied
Micheo's motion.
Several months later, on November 14, 2016, Micheo filed
an opposition to the defendants' motion for summary judgment.
Micheo argued that summary judgment was not warranted on her Title
VII claims and her related Puerto Rico law claims, but she
abandoned her other federal and Puerto Rico law claims.
On March 31, 2017, the District Court issued an order
that granted the defendants' motion for summary judgment as to
Micheo's Title VII claims, dismissed with prejudice the federal
and Puerto Rico law claims that Micheo had abandoned, and dismissed
without prejudice Micheo's remaining pendent Puerto Rico law
claims. This appeal then followed.
II.
We start with Micheo's Title VII claim for gender-based
disparate treatment. Because Micheo put forward no direct evidence
of discrimination, the District Court applied the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), in considering the defendants' motion to
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grant summary judgment as to this claim. Under that framework, to
survive summary judgment, Micheo must show that there is a genuine
issue of disputed material fact with respect to, among other
things, whether her employer subjected her to an adverse employment
action. See Lockridge v. The Univ. Of Maine Sys., 597 F.3d 464,
470, 472 (1st Cir. 2010).
We review the District Court's grant of summary judgment
de novo. Colón v. Tracey, 717 F.3d 43, 49 (1st Cir. 2013). In
performing that review, we must draw "all reasonable inferences
. . . in favor of the non-moving party," but we are "not obliged
to accept as true or to deem as a disputed material fact, each and
every unsupported, subjective, conclusory, or imaginative
statement made to the Court by a party." Torrech-Hernández v.
Gen. Elec. Co.,
519 F.3d 41, 47 (1st Cir. 2008) (emphasis omitted).
Micheo argued that the defendants subjected her to an
adverse employment action by passing her over for a promotion from
her position as a field sales representative in Stericycle's
BioSystem Program to the position of "Project Manager" or "Program
Manager" of the Integrated Waste Stream Solutions ("IWSS"),1 an
initiative within the BioSystem Program. She contends that the
defendants gave the position instead to Jorge Rodríguez-Toro
1
The parties and the District Court refer to this position
variously as "Program Manager" and "Project Manager." For
simplicity, we refer to this position as "IWSS Program Manager"
throughout.
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("Rodríguez"), who was at that time also a field sales
representative in the BioSystem Program.
The denial of a promotion to a position can constitute
an adverse employment action. See Cartagena v. Sec'y of Navy, 618
F.2d 130, 134 (1st Cir. 1980). The District Court, however, found
that, because there was no basis for finding that the position of
IWSS Program Manager existed, Micheo could not show that there was
a genuine issue of material fact as to whether she had been denied
a promotion to it. And we agree.
In challenging the District Court's conclusion on
appeal, Micheo does not argue that the fact that Rodríguez held
himself out as holding the title of IWSS Program Manager -- as the
record shows that he did -- suffices to create a genuine issue of
material fact as to whether the position at issue existed, such
that the defendants' refusal to promote her to it constituted an
adverse employment action. Indeed, the record shows that Micheo
also held herself out as holding a supervisory title -- namely, as
"Sharps Management System Supervisor" -- and she does not contend
that the title that Rodríguez held himself out as holding was in
and of itself more prestigious than the one she held herself out
as holding. Micheo also fails to identify any evidence that would
contradict the sworn affidavit of Stericycle's Human Resources
manager that, based on her own knowledge and review of Stericycle's
payroll records, Stericycle at no point established such a position
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on its payroll. Micheo instead makes just two arguments to support
her contention that the IWSS Program Manager position existed,
which she agrees is the necessary predicate for her contention
that she was treated adversely by not being promoted to it.
First, Micheo argues that a jury reasonably could find
on this record that Stericycle gave Rodríguez a higher salary in
return for performing the duties of IWSS Program Manager and thus
that the position existed even if it was not formally designated
as one on the company's payroll. Second, Micheo argues that a
jury could reasonably infer that the position of IWSS Program
Manager existed from the evidence in the record that she says would
permit a jury to find that, during the time period in which she
was working in the BioSystem Program and Rodríguez was holding
himself out as having that title, he was acting as her supervisor.
We start with what the record shows with respect to the
pay that Rodríguez received while he was at the company. Prior to
the creation of the BioSystem Program, Stericycle hired Rodríguez
and Micheo as field sales representatives and paid each of them
the same salary, $27,000. Then, sometime in 2013, Rodríguez was
promoted to a new position within the company -- namely,
transportation supervisor -- for which he received a higher salary.
There is no dispute, however, that Rodríguez received
his promotion to this position -- and the salary increase that
came with it -- before either Micheo or Rodríguez began working in
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the BioSystem Program as field sales representatives. Thus, the
fact that he received a higher salary for his promotion to the
position of transportation supervisor obviously provides no basis
for finding that the position of IWSS Program Manager in the
BioSystem Program existed.
The record does show that Rodríguez was later
transferred from his position as transportation supervisor to the
BioSystem Program. And the record further shows that, following
that transfer, Rodríguez held himself out as being the IWSS Program
Manager even though he was formally designated as a field sales
representative, like Micheo was. But, while Micheo contends that
Rodríguez continued to receive his higher salary after he had been
transferred into the BioSystem Program, and during the time he was
holding himself out as the IWSS Program Manager, the record does
not provide a basis for so concluding.
Micheo bases her contrary assertion entirely on
Rodríguez's own deposition testimony, but we do not see how it
says what she contends that it does. In that deposition, he agreed
that, following his transfer to the BioSystem Program from his
prior position as Transportation Supervisor, his salary was
"reduced back down to the $27,000.00 in Sales." And while
Rodríguez did then offer the caveat in his testimony that "what I
don't know is if, if it went back to my base salary when, when I
began with," he was clear that "there was an adjustment" downwards
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in his salary in consequence of his having been transferred from
the position for which he had received the salary increase to his
new position in sales in the BioSystem Program. In fact, when he
was asked later on in the deposition whether he was paid more to
be the IWSS Program Manager, he testified that he was not.
That leaves only Micheo's contention that the position
of IWSS Program Manager existed because the record would permit a
jury to find that Rodríguez supervised her while she worked in the
BioSystem Program. In making that assertion, Micheo relies on
copies of emails from Rodríguez to her that requested that she
provide him with information about her performance of her duties.
The District Court concluded, however, that the emails
showed only that "at times [Rodríguez] was told to 'verify with
[Micheo] how it went in [a specific hospital]' . . . because Ms.
Micheo was not performing her duties as directed and Mr. Rodríguez
was told to follow up on her work[.]" And, the District Court
then determined, while such requests were "sufficient to
inconvenience . . . Micheo," they were "insufficient to show that
Mr. Rodríguez was Ms. Micheo's supervisor."
We agree with the District Court. The emails at most
show that Rodríguez made requests to Micheo that "inconvenienced"
her. But, as the District Court explained, evidence of such
inconvenience fails to provide a reasonable basis from which a
jury could find that Rodríguez had been given the kind of
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supervisory power over Micheo that would provide sufficient
support for her contention that she had been subjected to an
adverse employment action. Cf. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998) ("A tangible employment action constitutes
a significant change in employment status, . . . such as a
significant change in responsibilities . . . or a decision causing
a significant change in benefits.").2
We thus agree with the District Court that the defendants
are entitled to summary judgment on her Title VII claim for gender-
based disparate treatment. And so we turn to her challenge to the
District Court's grant of summary judgment to the defendants on
her other Title VII claim, in which she alleges that the defendants
retaliated against her for complaining of the gender-based
discrimination that she claims to have endured.
III.
Like her evidence of gender-based disparate treatment,
Micheo's evidence of retaliation is circumstantial. Thus, the
2On appeal, Micheo also makes reference to evidence that
shows that one of Rodríguez's supervisors asked him to prepare a
report about Micheo's performance of those duties. But, Micheo
did not reference this report in the proceedings below. And, in
any event, the evidence concerning the report shows only that
Rodríguez had been tasked on one occasion with reporting to his
supervisors about Micheo's performance. We thus do not see how
that evidence provides a basis from which a jury could find that
Rodríguez had supervisory authority over Micheo, such that he
occupied a position in the company with significantly greater
responsibilities relative to hers. And that is so even if we
consider the report in conjunction with the emails.
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District Court applied the McDonnell Douglas framework in
evaluating the defendants' motion for summary judgment as to this
claim as well. Our review is, once again, de novo. Colón, 717
F.3d at 49.
The District Court concluded that the record provided
adequate support for a jury to find that Micheo had established
the following elements of her prima facie case of retaliation:
(1) Micheo had engaged in protected conduct
through her counsel's October 22, 2013 letter
to Stericycle stating her intent to sue for
gender discrimination and her filing of
charges with the Equal Employment Opportunity
Commission ("EEOC") and the Puerto Rico Anti-
Discrimination Unit ("ADU") on November 8,
2013; and
(2) Stericycle thereafter subjected to Micheo
to adverse employment actions by suspending
her on December 23, 2013; placing her on a
Performance Improvement Plan ("PIP") on
January 3, 2014; and terminating her
employment on January 20, 2014.3
3 Micheo also argues that she experienced two other adverse
employment actions: her "exclusion" from a golf tournament and her
supervisor's email to her admonishing her for "insubordination."
But, Micheo was not, on her own account, excluded from the golf
tournament; she was merely left off of one email planning that
tournament. And while she argues that participation in the
tournament was important for her professional development, she
offers no argument that being left off of that one email amounted
to an adverse employment action. In addition, she provides no
explanation as to how her supervisor's email "materially change[d]
the conditions" of her employment and thus no reason to think that
this email alone qualified as an "adverse employment action." See
Gu v. Bos. Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002); see also
Bhatti v. Tr. of Bos. Univ.,
659 F.3d 64, 73 (1st Cir. 2011)
("[N]one of the reprimands here can be said to be material because
none carried with it any tangible consequences."). We thus
conclude that Micheo has not demonstrated a genuine issue of
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But, the District Court then concluded that Micheo
failed to show that there was a genuine issue of disputed material
fact as to whether the defendants' asserted non-retaliatory reason
for taking those adverse employment actions -- namely, her own
misconduct at work -- was pretextual. And, on that basis, the
District Court granted summary judgment to the defendants.
To challenge the District Court's ruling about pretext,
Micheo relies primarily on the fact that the undisputed record
shows that she was subject to adverse employment actions within
three months of her protected conduct. But, this proximity in
timing does not alone suffice to create a genuine issue of material
fact as to pretext, given that her own unprotected conduct readily
explains the timing of each of the adverse employment actions that
the District Court identified. See Planadeball v. Wyndham Vacation
Resorts, Inc., 793 F.3d 169, 179 (1st Cir. 2015). In particular,
the record shows that Micheo was placed on the PIP soon after she
was repeatedly absent from work and meetings at hospitals in which
she was supposed to represent Stericycle; that Micheo was suspended
soon after she initially refused to sign the PIP; and that her
employment was terminated right after violating the terms of the
PIP after she eventually signed it.
material fact as to whether either of these events qualified as an
adverse employment action.
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Micheo does assert in her brief to us that the incidents
that the PIP itself identified as the basis for her placement on
it were false. She fails, however, to identify anything in the
record to support that assertion.
In nonetheless contending that a jury could find that
Stericycle's stated reasons for taking these actions were
pretextual, Micheo argues that the record permits a jury reasonably
to find that the defendants deviated from the company's standard
disciplinary process in disciplining her for her alleged
misconduct. But, while evidence of such deviation may provide a
basis for finding pretext, see Brennan v. GTE Gov't Sys. Corp.,
150 F.3d 21, 29 (1st Cir. 1998), the record does not support
Micheo's grounds for arguing that a jury could reasonably find
that there was such deviation here.
Specifically, although Micheo argues that the company
deviated from its disciplinary policy by placing her on the PIP
precipitously, the District Court correctly pointed out that
Stericycle's "Corrective Action Plan" states that it "reserves the
right to 'skip steps'" in implementing its progressive discipline
policy. In light of that fact, we do not see how Micheo has
adequately explained how the company acted irregularly in
implementing its disciplinary policy by placing her on the PIP
when it did.
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Micheo next argues that the termination of her
employment while she was on the PIP violated company policy and
thus constitutes evidence of pretext. But, the PIP specifically
contemplated that "failure to [comply with the PIP] will force
[Stericycle] to take disciplinary action up to and including
termination." So, the fact that the record shows that Stericycle
terminated her employment before the expiration of the PIP on the
basis of her conduct while the PIP was in place does not
demonstrate that Stericycle deviated from the policies set out in
the PIP.
Finally, Micheo contends that Stericycle deviated from
its disciplinary policy because the company did not have the
supervisor of the BioSystem Program meet with Micheo to discuss
the PIP; did not "provide the 'resources' for" the PIP's
"successful completion"; did not seek Micheo's own version in
relation to the employer's charges of misconduct; and terminated
her even though she had not engaged in "gross misconduct[.]" But,
Micheo points to no evidence to indicate that in taking or failing
to take any of these actions Stericycle deviated from standard
company practice. In particular, we note that Micheo does not
point to anything in the PIP that would indicate that an employee
on the PIP could only be terminated for "gross misconduct," rather
than for any violation of the PIP. Indeed, the PIP specifically
states that "[Micheo] must complete all items in this Action Plan,
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improve and maintain an acceptable work performance according to
the company's expectations by January 31, 2014. Failure to do so
will force us to take disciplinary action up to and including
termination."
Micheo does also contend that the record shows that
Stericycle provided "shifting explanations about the reason for
her suspension" and that, on this basis, a jury could reasonably
conclude that Stericycle's legitimate nondiscriminatory reason for
taking the actions that it did was pretextual. See Gómez–González
v. Rural Opportunities, Inc., 626 F.3d 654, 662–63 (1st Cir. 2010)
("Pretext can be shown by such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action.") But,
the statements that Micheo points to as evidence of Stericycle's
inconsistent explanations for suspending her do not materially
conflict with one another.
We thus conclude that the District Court correctly
determined that the defendants were entitled to summary judgment
as to Micheo's Title VII retaliation claim.4 And so we turn to
Micheo's sole remaining challenge to the District Court's grant of
4Given our holding as to pretext, we need not address Micheo's
contention that the District Court erred in determining that the
only instances of "protected conduct" were the letter Micheo's
counsel sent on October 22, 2013 to Stericycle stating her intent
to sue and her November 8, 2013 complaint with the EEOC and ADU
alleging sex discrimination.
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summary judgment to the defendants on her Title VII claims --
namely, that the District Court abused its discretion in denying
her motion to strike Stericycle's motion for summary judgment
pursuant to Local Rule 56.
IV.
Our review of the District Court's denial of her motion
to strike the defendants' motion for summary judgment pursuant to
Local Rule 56 is for abuse of discretion. See Turner v. Hubbard
Sys., Inc., 855 F.3d 10, 12 (1st Cir. 2017). We find none.
Local Rule 56 states that:
Facts contained in a supporting or opposing
statement of material facts, if supported by
record citations as required by this rule,
shall be deemed admitted unless properly
controverted. An assertion of fact set forth
in a statement of material facts shall be
followed by a citation to the specific page or
paragraph of identified record material
supporting the assertion. The court may
disregard any statement of fact not supported
by a specific citation to record material
properly considered on summary judgment. The
court shall have no independent duty to search
or consider any part of the record not
specifically referenced in the parties'
separate statement of facts.
D.P.R. L. Civ. R. 56(e).
Micheo argued in her motion to strike that the
defendants' motion for summary judgment failed to comply with this
rule because the defendants had not properly labeled their
supporting documentation. To support this contention, she
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identified as an example of the defendants' failure to comply with
the rule that they had referred in their summary judgment motion
to "Exh. 53" in referring to Micheo's filings before the ADU, even
though the docket entry in her case before the District Court that
is numbered 81-53 "concern[ed] a completely different event: her
hospitalization at Hospital Panamericano on January 18, 2014."
On appeal, Micheo repeats her argument below that the
numbers assigned to the exhibits attached to the defendants'
summary judgment motion did not align with the numbers for the
docket entries in her case before the District Court. But, as the
District Court pointed out, the defendants' "citations clearly
refer to the exhibit number used to label each exhibit." We thus
do not see how the District Court abused its discretion in denying
Micheo's motion to strike the defendants' motion for summary
judgment.
V.
For the forgoing reasons, we affirm the District Court's
order granting summary judgment to the defendants on Micheo's Title
VII claims and dismissing without prejudice Micheo's related
Puerto Rico law claims.
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