Martha Isabelle Bonilla-Ramirez v. MVM, INC., d/b/a MVM Security, Inc., a/k/a MVM International Security, Inc.

United States Court of Appeals
For the First Circuit
No. 17-1512
MARTHA ISABELLE BONILLA-RAMIREZ,
Plaintiff, Appellant,
v.
MVM, INC., d/b/a MVM Security, Inc., a/k/a MVM International
Security, Inc.; CHRISTOPHER MARTIN MCHALE,
Defendants, Appellees,
JEH CHARLES JOHNSON, acting in his individual capacity; LORETTA
E. LYNCH, acting in her individual capacity; KIRSTJEN NIELSEN,
acting in her official capacity; ELPIDIO NUNEZ; JEFFERSON B.
SESSIONS, III, acting in his official capacity; UNITED STATES
DEPTARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF JUSTICE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Humberto Cobo-Estrella, with whom Cobo Estrella Law
Office was on brief, for appellant.
Ana B. Rosado-Frontanés, with whom Schuster Aguiló LLC
was on brief, for appellees.

-- 1 of 15 --

September 14, 2018

-- 2 of 15 --

- 3 -
BARRON, Circuit Judge. Martha Bonilla-Ramirez
("Bonilla") is a former employee of MVM, Inc. ("MVM"), which is a
private security company that is based in Puerto Rico and provides
security services to the United States Immigration and Customs
Enforcement ("ICE"). Following Bonilla's termination from MVM in
2014, she brought a variety of federal and Puerto Rico law claims
against her former employer and other defendants in the United
States District Court for the District of Puerto Rico. The
District Court dismissed all but her claims against MVM under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.,
and related Puerto Rico laws, and then granted summary judgment to
MVM as to those claims. Bonilla now appeals that summary judgment
ruling, which we affirm.
I.
While working for MVM, Bonilla was assigned to the Luis
Muñoz Marín International Airport in San Juan, Puerto Rico (the
"airport"). Her responsibilities included providing security for
detainees in ICE custody at ICE's detention facility in the
airport.
On June 14, 2014, Bonilla reported to her supervisor an
incident at the airport that occurred that same day and that
involved a dispute between her and another MVM employee, Abraham
Ortiz ("Ortiz"). Bonilla's supervisor asked her to produce a
written account of what had occurred. In her written statement to

-- 3 of 15 --

- 4 -
her supervisor, which she submitted on June 20, Bonilla complained
that Ortiz was ordering her around, requesting that she do all of
their work, "calling [her] out for using her [personal] cellphone,"
and generally acting like her supervisor. Ortiz, for his part,
sent a letter on June 18 to a supervisor at MVM in which he
complained, among other things, about Bonilla having directed foul
language toward him during the June 14 incident.
On June 24, three supervisors met with Bonilla and Ortiz
about the incident. One of the supervisors wrote a report
following that meeting, and MVM then looked further into the
complaints that Bonilla and Ortiz had lodged against each other.
MVM asserts that it determined from its inquiry that immediately
prior to the June 14 incident between Bonilla and Ortiz, Bonilla
had "[abandoned her post] for approximately two hours" with another
MVM employee, Alexandra Rodriguez ("Rodriguez"), who was off duty.
MVM also asserts that through this inquiry it determined, based on
its analysis of an airport security video, that while away from
her post with Rodriguez, Bonilla had engaged in conduct known as
"piggybacking," which involves following another person through a
secured door without both swiping one's airport badge and entering
one's personal code on a keypad. Finally, MVM asserts that its
inquiry showed that Bonilla had used her personal cellphone during
work hours.

-- 4 of 15 --

- 5 -
On June 24, 2014, MVM reported these findings to ICE.
On July 10, 2014, MVM cited Bonilla for committing multiple
"security violations," which included abandoning her post, using
her personal cell phone, and engaging in piggybacking. That same
day, MVM gave her a verbal warning, took away her airport badge,
and notified her that she was being reassigned to another post,
not at the airport.
On August 12, 2014, Bonilla filed a charge of gender
discrimination and retaliation against MVM with the United States
Equal Employment Opportunity Commission ("EEOC"). Bonilla's EEOC
charge was faxed to MVM that same day. That evening, ICE sent an
email to Jay Vergel ("Vergel"), MVM's Operations Manager,
requesting that Bonilla be immediately removed from providing
services for ICE under its contract with MVM. Minutes after Vergel
received that email, he instructed his team to make sure that she
was "removed" that day. That same evening, MVM called Bonilla and
asked her to report to work the next day, August 13, 2014. Bonilla
did not do so, but she did report to work on August 14, when she
was informed that she was terminated, effective August 13.
On May 14, 2015, Bonilla filed suit against MVM and other
defendants in the District of Puerto Rico in which she brought a
variety of claims under federal and Puerto Rico law. The District
Court dismissed most of those claims, such that her only remaining
claims were her Title VII claims against MVM and her discrimination

-- 5 of 15 --

- 6 -
and tort claims against that same defendant. 1 The District Court
then granted MVM's motion for summary judgment on these remaining
claims.
Bonilla now appeals the District Court's ruling granting
summary judgment to MVM as to each of Bonilla's three distinct
Title VII claims, which are for, respectively, creating a hostile
work environment, gender-based disparate treatment, and
retaliation, and as to each of her related Puerto Rico law claims.
We review a grant of summary judgment de novo, affirming the grant
of summary judgment where, drawing all inferences in favor of the
nonmoving party, the record discloses no genuine issues of material
fact and demonstrates that the moving party is entitled to judgment
as a matter of law. See Delaney v. Town of Abington, 890 F.3d 1,
5 (1st Cir. 2018).
II.
A.
We start with Bonilla's challenge to the grant of summary
judgment to MVM on her hostile work environment claim, which she
1 The previously dismissed claims include the federal and
Puerto Rico law claims against U.S. Immigration and Customs
Enforcement, the U.S. Department of Homeland Security, the U.S.
Department of Justice, various federal officials, and MVM's
General Counsel Christopher McHale ("McHale"), as well as a
Racketeer Influenced and Corrupt Organization Act ("RICO"), 18
U.S.C. §§ 1962, 1964, claim against MVM.

-- 6 of 15 --

- 7 -
bases on the alleged conduct of Ortiz. We may dispose of this
challenge quickly.
The District Court gave a number of reasons for granting
MVM summary judgment as to this claim, including that Bonilla had
failed to exhaust her administrative remedies because she had not
raised this claim in the charge that she filed with the EEOC on
August 12, 2015. Bonilla, however, does not address this ground
at all in her briefing to us, and so she has waived any challenge
to it. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d
25, 29 (1st Cir. 2015). Accordingly, we affirm the grant of
summary judgment as to this claim.
B.
We next address Bonilla's challenge to the District
Court's grant of summary judgment to MVM on her claim under Title
VII that MVM unlawfully subjected her to disparate treatment
because of her gender by disciplining her in the way that it did.
Because Bonilla relies on circumstantial rather than direct
evidence of discrimination to support this claim, the District
Court applied the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), in ruling on
MVM's summary judgment motion. 2
2 Below, and in line with MVM's summary judgment briefing,
the District Court also applied the McDonnell Douglas framework to
assess whether summary judgment was appropriate. In applying this
framework, the District Court noted that not only did Bonilla "not

-- 7 of 15 --

- 8 -
The McDonnell Douglas framework requires a plaintiff, in
order to survive summary judgment, to "first establish a prima
facie case by showing that: (1) she belonged to a protected class,
(2) she performed her job satisfactorily, (3) her employer took an
adverse employment decision against her, and (4) her employer
continued to have her duties performed by a comparably qualified
person," Burns v. Johnson, 829 F.3d 1, 9 n.8 (1st Cir. 2016)
(quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 54 (1st Cir. 2000)). If the plaintiff establishes a prima
facie case, then she is entitled to an inference of discrimination.
Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 57 (1st Cir.
2018). And thus, at that point, "the burden of production then
'shifts to the employer to state a legitimate, nondiscriminatory
reason for the adverse employment action.'" Burns, 829 F.3d at 9
n.8 (quoting Santiago-Ramos, 217 F.3d at 54). If the defendant
meets that burden of production, then the plaintiff bears the
ultimate burden of proof to show that the employer's proffered
nondiscriminatory reason for the adverse employment action was a
argue that any other test applies," see, e.g., Burns, 829 F.3d at
9 n.9 (describing the "mixed-motives theory" that "applies to cases
where multiple motives lie behind an adverse employment action"),
but also "the record d[id] not evince multiple motives." On
appeal, Bonilla cursorily suggests that another framework, which
applies to a mixed-motives theory of discrimination, may also be
applicable. However, as this argument was neither presented below,
see United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992), nor
developed on appeal, see Schneider v. Local 103 I.B.E.W. Health
Plan, 442 F.3d 1, 3 (1st Cir. 2006), we do not consider it.

-- 8 of 15 --

- 9 -
pretext and that the employer did intentionally discriminate
against her because of her sex. See id.
We assume, as the District Court did, that Bonilla has
successfully established a prima facie case for this claim under
McDonnell Douglas. And, we conclude, as the District Court did,
that MVM met its burden to assert a legitimate nondiscriminatory
reason for the adverse employment actions that Bonilla contends
that MVM took against her. To do so on summary judgment, MVM
needed only to produce "enough competent evidence, taken as true,
to enable a rational factfinder to conclude that there existed a
nondiscriminatory reason for the challenged employment action[.]"
Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir.
1997) (emphasis in original). And, as the District Court properly
found, MVM asserted that Bonilla incurred several security
violations while performing her duties, which included abandoning
her post, using her cell phone while on duty, and piggybacking
through secured airport doors. According to MVM, these violations
were prohibited by both the MVM and ICE Standards of Conduct.
Thus, MVM has met its burden under McDonnell Douglas to put forth
a legitimate, nondiscriminatory reason for its adverse employment
actions against Bonilla. Vélez v. Thermo King de P.R., Inc., 585
F.3d 441, 449 (1st Cir. 2009) (noting that code of conduct
violations are "legitimate, non-discriminatory reasons" for
termination).

-- 9 of 15 --

- 10 -
There is still the question, though, whether Bonilla has
shown that there is a genuine issue of triable fact as to whether
MVM's proffered nondiscriminatory reasons for its actions are
pretextual. And it is at this step that the District Court
concluded that Bonilla came up short. We agree.
In contending otherwise, Bonilla rightly points out that
evidence of an employer's disparate treatment of similarly
situated male employees can support a finding that a proffered
nondiscriminatory basis for an employer taking an adverse
employment action against a female employee is a pretext for sex
discrimination. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,
181 F.3d 15, 21 (1st Cir. 1999) (quoting Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992)). But, contrary to Bonilla's
contention, the record simply does not provide a basis from which
a reasonable jury could conclude that the three male employees
whom Bonilla identifies as having been similarly situated to her
but not similarly disciplined for their misconduct were in fact
similarly situated to her.
The record shows that Bonilla was terminated after ICE
had requested that MVM prevent her from providing services to ICE
under its contract with MVM. Nothing in the record indicates,
however, that ICE made any similar request with respect to any of
the three male comparators that she identifies.

-- 10 of 15 --

- 11 -
Bonilla does also contend that she was subject to
disparate treatment relative to these three male employees through
other adverse actions that MVM took against her. In particular,
she points to the fact that MVM removed her airport badge and
reassigned her to another post under the ICE contract for her
alleged misconduct. But Bonilla acknowledges MVM's contention
that it removed her airport badge, and in consequence of that
removal reassigned her to a post not at the airport, because of
conduct by Bonilla that it had concluded constituted a "security
violation," in the form of "piggybacking." Yet Bonilla identifies
no evidence to indicate that the three male employees that she
contends are similarly situated to her engaged in misconduct that
constituted a "security violation." In fact, the only other
employees in the record who were cited as engaging in conduct that
ICE or MVM considered to be a "security violation" -- David
Santiago ("Santiago"), 3 a male, and Rodriquez, a female off duty
detention officer involved in the same incident as Bonilla -- lost
their airport badges and were terminated after ICE requested that
they be removed from performing duties under the ICE/MVM contract
due to these security violations. 4
3 Santiago, who was also an MVM detention officer, was alleged
to have failed to store his MVM-authorized weapon in a designated
area before accessing a secured and restricted area while on duty
and performing a transportation detail on June 14, 2014.
4 In consequence of her conduct on June 14, which MVM described
as "access[ing] airport security doors" while off-duty and

-- 11 of 15 --

- 12 -
We thus conclude that Bonilla's challenge to the
District Court's pretext ruling fails. And, accordingly, we
affirm the grant of summary judgment to MVM as to Bonilla's
disparate treatment Title VII claim.
C.
We turn, then, to Bonilla's remaining claim under Title
VII, which is for retaliation. To demonstrate retaliation in
violation of Title VII, "a plaintiff must show that (i) she
undertook protected conduct, (ii) she suffered an adverse
employment action, and (iii) the two were causally linked."
Xiaoyan Tang v. Citizens Bank, 821 F.3d 206, 218–19 (1st Cir. 2016)
(citing Noviello v. City of Bos., 398 F.3d 76, 88 (1st Cir. 2005)).
We begin with Bonilla's contention that she has met her
burden at summary judgment to show that there is a genuine issue
of triable fact as to whether MVM retaliated against her for her
engaging in "piggybacking" by giving Bonilla "access through
secured doors," MVM suspended Rodriguez from work for five days
without pay and took away her airport badge. At the time,
Rodriguez's disciplinary record included three disciplinary
actions in the last year and a prior suspension from work related
to one of those actions. Santiago, also based in part on his past
disciplinary record which included one disciplinary action -- a
written reprimand -- in the last year, was suspended by MVM from
work for two days without pay and lost his airport badge. However,
like Bonilla, both were eventually terminated (on the same day as
Bonilla) after ICE informed MVM that, because of their conduct,
Bonilla, Rodriguez and Santiago should all be "removed from the
contract immediately."

-- 12 of 15 --

- 13 -
EEOC filing. We agree, however, with the District Court's ruling
that she has not.
In arguing otherwise, Bonilla points to the fact that
MVM decided to terminate her soon after she had filed her EEOC
complaint. But MVM's decision to do so at that time is "readily
explain[ed]" by the timing of ICE's request that she be removed
from the contract, as MVM received that request on the same day
that she filed her complaint and MVM then removed her the next
day. See Micheo-Acevedo v. Stericycle of P.R., Inc., 897 F.3d
360, 366 (1st Cir. 2018). And Bonilla identifies no evidence to
provide a basis from which a jury could conclude that MVM prompted
ICE to make the request at that time due to Bonilla's EEOC filing.
Thus, we do not see how the proximity of that termination decision
to her filing of the EEOC complaint, without more, can provide a
basis for permitting this claim to survive summary judgment.
Bonilla does also argue that MVM retaliated against her
through adverse employment actions short of termination. She
points in particular to MVM's July 10 citation stripping her of
her security badge and reassigning her to a non-airport facility.
Notably, however, her protected decision to file her EEOC complaint
occurred after July 10. Thus, MVM's decision to strip her of her
security badge and to reassign her could not have been retaliation
for that protected conduct.

-- 13 of 15 --

- 14 -
That leaves only, then, the question of whether her
internal complaints to MVM that occurred on or before July 10
constituted protected conduct, such that the adverse employment
actions taken on July 10 could reasonably be deemed to have been
taken in retaliation for that protected conduct. The District Court
concluded, however, that the internal complaints that Bonilla
allegedly made prior to July 10 did not constitute protected
activity, 5 and Bonilla does not develop any argument on appeal as
to why those complaints may be properly characterized as having
protested or opposed "statutorily prohibited discrimination" as
opposed to merely workplace behavior of which she disapproved.
Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)
(quoting Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir.
2000)). Thus, we view any argument that such complaints constitute
protected activity to be waived for lack of development. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting
that arguments undeveloped on appeal are waived).
For these reasons, we affirm the District Court's ruling
granting MVM summary judgment as to Bonilla's Title VII retaliation
claim.
5 Specifically, the District Court pointed to the complaints
that Bonilla raised about Ortiz during her June 24 meeting with
three MVM supervisors. Bonilla alludes to earlier complaints in
her brief, but similarly does not address why these complaints
would qualify as protected activity.

-- 14 of 15 --

- 15 -
D.
Finally, Bonilla appears also to be appealing the
District Court's grant of summary judgment for the Puerto Rico law
claims that "correspond[]" to her Title VII claims. 6 But, as
Bonilla makes no argument that her Puerto Rico law claims survive
if her Title VII claims do not, we affirm the District Court's
summary judgment ruling dismissing Bonilla's claims against MVM
pursuant to Puerto Rico Law 80 (Unjust Discharge Act), P.R. Laws
Ann. tit. 29 §§ 185a, et seq.; Puerto Rico Law 100 (anti-
discrimination statute), P.R. Laws Ann. tit. 29 §§ 146, et seq.;
and Puerto Rico Law 115 (anti-retaliation statute), P.R. Laws Ann.
tit. 29 §§ 194, et seq. 7
III.
We, therefore, affirm the District Court's ruling
granting MVM's motion for summary judgment.
6 Bonilla expressly does not contest the District Court's
summary judgment ruling concerning her claims against MVM under
Puerto Rico Law Articles 1802 and 1803, P.R. Laws Ann. tit. 31 §§
5141-42.
7 To the extent Bonilla also means to argue that her Puerto
Rico law claims survive even if her Title VII claims do not, we
deem any such argument waived for lack of development. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-- 15 of 15 --