Neysa Colón v. Jeffrey A. Tracey; Infotech Aerospace Service, Inc.; Iveetzia Aviléz; Luis Mercado

United States Court of Appeals
For the First Circuit
No. 12-1978
NEYSA COLÓN,
Plaintiff, Appellant,
v.
JEFFREY A. TRACEY; INFOTECH AEROSPACE SERVICE, INC.;
IVEETZIA AVILÉZ; LUIS MERCADO,
Defendants, Appellees.
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 Lipez, Circuit Judges.
Johanna M. Emmanuelli Huertas, with whom Pedro E. Ortiz
Álvarez, LLC, was on brief, for appellant.
Mariel Y. Haack, with whom Edwin J. Seda-Fernández and Adsuar
Muñiz Goyco Seda & Pérez-Ochoa, PSC, were on brief, for appellees.
May 17, 2013

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LYNCH, Chief Judge. Plaintiff Neysa Colón appeals from
the entry of summary judgment on her claims against Infotech
Aerospace Services, Inc., for unlawful employment retaliation under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Colón
v. Infotech Aerospace Servs. Inc., 869 F. Supp. 2d 220 (D.P.R.
2012). The district court dismissed Colón's case with prejudice on
the grounds that, as to the two aspects of her employment at issue,
she had neither established a prima facie case of retaliation nor
shown that the defendants' stated rationales for their purportedly
unlawful actions toward her were pretextual. Id. at 230. Finding
no error in the district court's conclusions, we affirm.
I.
Defendant Infotech Aerospace Services, Inc. ("IAS") is a
Puerto Rico corporation specializing in the design and supply of
aerospace products for military, commercial, and industrial
application. From April 30, 2007, through her resignation on March
8, 2010, Colón was employed at IAS as a Human Resources ("HR")
Generalist, and she was primarily responsible in that capacity for
overseeing the benefits and compensation of IAS employees.
Throughout Colón's term of employment, defendant Luis Mercado
served as IAS's HR Manager, while defendants Iveetzia Aviléz and
Jeffrey Tracey occupied other supervisory roles within the company.
Colón filed this action against the defendants in the
District of Puerto Rico on December 13, 2010. The complaint
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alleges that beginning in approximately December 2008, Colón was
subject to several adverse employment actions, including a January
2009 "demotion" and a June 2009 suspension, which compelled her to
resign from IAS. Colón asserts that these actions were taken in
retaliation for two occasions on which, in the ordinary performance
of her duties, she called attention to IAS's purportedly
discriminatory employment practices.1
Defendants filed their motion for summary judgment on
April 2, 2012, asserting that the uncontested facts established
that Colón had been treated fairly and without retaliation
throughout her employment with IAS, that IAS's actions toward Colón
were taken for bona fide business reasons, and that Colón's
resignation resulted from her own "overreact[ion] to a
well-warranted disciplinary situation." The defendants argued that
Colón's claims should be dismissed with prejudice because she could
not establish her prima facie case nor show that IAS's stated
reasons for its actions toward her were pretextual.
The complaint also asserted claims under the federal Equal 1
Pay Act ("EPA"), 29 U.S.C. § 206(d)(1), and Puerto Rico Laws 100
and 115, P.R. Laws Ann. tit. 29, §§ 146, 194, and asserted that
defendants Mercado, Tracey, and Aviléz were personally liable,
pursuant to Article 1802 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31, § 5141, "for their 'conspiracy and engagement in
discriminatory acts' in concert with IAS." Colón v. Infotech
Aerospace Servs. Inc., 869 F. Supp. 2d 220, 222 (D.P.R. 2012).
Colón has not challenged the district court's January 10, 2012
dismissal of her Law 100 claims or addressed her EPA, Law 115, or
Article 1802 claims in her argument on appeal.
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On May 21, 2012, the magistrate judge issued a Report and
Recommendation ("R & R") advising the district court to grant the
defendants' motion for summary judgment in full. Colón v. Infotech
Aerospace Servs., Inc., Civil No. 10-2220 (FAB/CVR), 2012 WL
3155140 (D.P.R. May 21, 2012). The district court ultimately
adopted the magistrate judge's R & R, dismissing Colón's case with
prejudice. Colón, 869 F. Supp. 2d at 231. This timely appeal
followed.
II.
We set out the undisputed facts articulated in the R & R
and in the district court opinion as to the two allegedly adverse
employment actions that Colón has emphasized on appeal as the bases
for her retaliation claims: (1) the January 2009 change in her
position, which she asserts was a demotion; and (2) the June 2009
suspension.2
A. The January 2009 Change in Position
1. Colón's Inadequate Preparation of IAS's 2008 Affirmative
Action Plan
In 2007, shortly after she was hired, Colón was asked to
prepare IAS's 2008 Affirmative Action Plan ("AAP"), having
Colón objected below to the R & R's treatment of the adverse 2
employment actions alleged in the complaint as discrete incidents
rather than as subcomponents in an overarching "reprisal course of
action." The district court rejected this argument, finding that
"[b]ecause each of these actions were [sic] not adverse
individually, viewing them combined makes no significant legal
difference." Colón, 869 F. Supp. 2d at 230. Colón has not raised
this issue on appeal and we do not address it.
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represented to the company that she had experience preparing AAPs
through her previous employer. Colón's timely completion of this
assignment was important because IAS could not receive contracts
with the federal government without an AAP. See, e.g., Exec. Order
No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965) (authorizing
Secretary of Labor to require submission of AAPs by all government
contractors); see also 41 C.F.R. pts. 60-1, -2 (2013) (implementing
regulations).
Around January 2009, more than a year later, Colón
submitted a late copy of the 2008 AAP to her supervisor, Luis
Mercado, who found it to be "six months late," "incomplete," and "a
draft." Mercado informed Colón that her work "wasn't acceptable."
He, not being an expert in the area, recommended that IAS hire an
outside consultant to independently evaluate Colón's progress and
"complete the whole process." IAS retained Janice Monge, a
certified expert in affirmative action, to that end on February 23,
2009. Colón was removed from the assignment.
Monge completed her review of Colón's draft AAP in July
2009, finding a host of errors and deficiencies. Of some 3
As summarized by the magistrate judge, Monge concluded, 3
inter alia, that Colón's AAP (1) was "six . . . months late,
covering [only] until June 30, 2008"; (2) "contained entire
sections no longer required by law"; (3) "lacked an adverse impact
analysis, compensation analysis, [and] was not supported by
statistical analysis"; and (4) "lacked foundation for the
conclusions [it] expressed." Colón v. Infotech Aerospace Servs.,
Inc., Civil No. 10-2220 (FAB/CVR), 2012 WL 3155140, at *4 (D.P.R.
May 21, 2012).
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importance here, while Colón's version of the AAP purported to find
compensation discrimination at IAS, it "did not indicate what
methodology was used, what information the conclusion was based on
and how Colón had reached that conclusion." Colón, 2012 WL
3155140, at *4. Following this evaluation, Monge completed a
corrected AAP for IAS in 2009. IAS has since retained Monge to
prepare its annual AAP. Id.
2. Colón's Participation in Human Resources Cross-Training
In December 2008, Mercado expressed to Jeff Tracey his
intention to "cross-train" four HR employees, including Colón, in
other areas within the HR Department. The purpose of this 4
exercise was to create a more flexible work force and "to ensure
that all functions of the Human Resources Department could be
performed, even in the absence of the employee who usually
performed [them]." Colón was informed of her participation in
January 2009 and was subsequently assigned to new "Business
Partner" responsibilities, which made her an HR "point person of
contact" for employees within various IAS departments. Another HR
employee, Hermy Rosario, assumed Colón's previous "Compensation"
responsibilities.
In full, the January 2009 cross-training rotations were as 4
follows: "Ms. Hermy Rosario rotated from Business Partner to
Compensation, Ms. Neysa Colón rotated from Compensation to Business
Partner, Ms. Margarita Piñero was rotated from Hiring to Training,
and Ms. Mayra García was rotated from Training to Hiring."
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The complaint alleges that Colón's new position was a
demotion. However, Colón's job title, salary, and benefits
remained the same, and her performance review for 2008, discussed
in early 2009, was favorable. Moreover, Colón had participated in
a similar cross-training exercise in January 2008, which had also
assigned to her some "Business Partner" responsibilities. Colón,
869 F. Supp. 2d at 223.
B. The June 2009 Suspension
1. Colón's Investigation of Díaz's Salary Discrimination
Complaint
In March 2009, the HR Department received a complaint
from Anayanssi Díaz, an employee in IAS's Project Management
Department, regarding an alleged disparity between her compensation
and that of a male coworker. As the Business Partner assigned to
Project Management, Colón was asked to prepare a table comparing
Díaz and the male employee as to salary, experience, education, and
other factors relevant to compensation. Mercado testified that
both he and IAS's then-general manager, Hector Rodríguez,
explicitly instructed Colón that all information pertaining to this
investigation was confidential and could not be disclosed except as
authorized by Mercado. Colón would later violate this 5
instruction, as recounted below.
Colón later requested that she be removed from the 5
investigation, as Díaz was a close friend.
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A few months later, in May 2009, Díaz had a panic attack
in an IAS restroom and was discovered there by Colón and another
IAS employee. IAS referred Díaz to the Puerto Rico State Insurance
Fund Corporation ("SIF") for evaluation and, on June 9, 2009, an 6
SIF investigator, Agrimalde Pérez, came to IAS to interview Colón
and other witnesses to the panic attack incident. Because IAS is
a secured facility, Pérez had to be escorted by an authorized IAS
employee at all times. Hermy Rosario, the employee who had 7
assumed Colón's "Compensation" duties during cross-training, was
assigned that task and remained with or near Pérez for the duration
of his visit.8
The Puerto Rico State Insurance Fund Corporation is "a 6
public corporation in Puerto Rico that administers the
Commonwealth's workers' compensation program." Casiano-Montañez v.
State Ins. Fund Corp., 707 F.3d 124, 126 (1st Cir. 2013); see also
P.R. Laws Ann. tit. 11, §§ 1a to 1b-4 (authorizing creation of SIF
and defining its authority and obligations).
Not all IAS employees were authorized to act as visitor 7
escorts. Such authorization required an employee to "complete[]
certain authorization documents and sign a certification stating
the understanding of ensuring all visitors are never left
unattended, the potential consequences these situations have for
the company and the possible disciplinary action as to the employee
if the visitor is left unattended." Colón, 2012 WL 3155140, at *5.
Colón alleges without evidentiary support that Rosario stood 8
near the door throughout her interview, "making gestures that
[Colón] was talking too much," and that Colón told Pérez "that she
felt intimidated" by Rosario's presence. Contrary to these
assertions, however, Pérez testified that Rosario was not present
during Colón's interview and that Colón made no such comments and
appeared "normal" during the interview process. Pérez did
acknowledge that Rosario was present for some of his interviews,
but stated that she did not "participate or intervene" in any
manner.
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2. Colón's Disclosure of Confidential Information to the
Puerto Rico State Insurance Fund and Other Violations of
IAS Rules
On June 12, 2009, Rosario found a fax transaction report
indicating that an IAS employee had sent confidential salary
information to the SIF concerning IAS's internal investigation of
Díaz's salary discrimination complaint. When Mercado later met
with Colón, she admitted to faxing the information even though it
was confidential and she had not requested prior approval from
Mercado as instructed. This conduct violated several provisions in
the IAS employee manual.9
Colón argued, however, that Pérez had specifically
requested her salary comparison analysis and that she believed
disclosure was therefore required by law. Mercado decided to
contact the SIF directly before taking disciplinary action and
adjourned the meeting. Both the SIF and Pérez denied requesting
the confidential salary information. In fact, Pérez testified that
Colón had independently offered to provide the information and that
he had instructed Colón, "if she could provide it, she could send
it by fax." R. App. 427 (emphasis added).
On June 16, 2009, Tracey and Aviléz held a follow-up
meeting with Colón, during which Colón also admitted to having
The IAS employee manual provides, inter alia, that employee 9
wage information is strictly confidential and can only be disclosed
pursuant to a written request from the employee or in the context
of a legal proceeding, and that improper disclosure is sanctionable
by corrective disciplinary action.
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confidential salary information on her "pen drive" and her personal
"H: drive" on IAS's server, both violations of IAS policy. This
was a separate transgression of company rules. Colón was asked to
transfer that proprietary information to a password protected
folder on the company's "O: drive." She was then informed that she
was being placed on three days of paid administrative leave while
IAS investigated the matter further. It is this leave which she 10
alleges was retaliatory. Tracey and Aviléz also told Colón that
they wished to keep the investigation of her conduct confidential
for her privacy and benefit.11
At the close of its investigation, IAS determined that
Colón's conduct had, in fact, violated company policy. Upon her
return to work, Colón was to receive a "final corrective action,"
or a written warning informing her that future disciplinary
infractions might result in termination of her employment. No
additional disciplinary action was contemplated at that time.
The IAS employee manual expressly permitted suspension with 10
pay during the pendency of an investigation, and IAS did not regard
such action as disciplinary.
Specifically, the magistrate judge ruled that the undisputed 11
facts established that "[IAS] determined to keep Colón's
investigation confidential for she was part of Human Resources and
[they] did not want her to feel uncomfortable in her work area.
Aviles and Tracy made a commitment with Colón [that] the matter was
to be kept as confidential as possible." Colón, 2012 WL 3155140,
at *7.
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3. Colón's Failure to Return to Work and Subsequent
Resignation
On the morning of June 19, 2009, the Friday before the
Monday on which Colón was scheduled to return to work, Aviléz left
Colón a voice message instructing her to contact Tracey in order to
retrieve her employee badge, which had been taken away during her
suspension and was required to enter IAS's secure facility.
Otherwise, Colón would have to pick up her badge in IAS's non-
secure lobby, jeopardizing the confidentiality of her disciplinary
investigation.
Colón never contacted Tracey and did not report to work
on June 22. Instead, Colón reported to the SIF, claiming that due
to Aviléz's voice message, she was emotionally distressed and
feared Tracey might attack or even kill her if they met outside
IAS's facilities. During the pendency of the SIF's investigation, 12
IAS reserved Colón's employment, as required by Puerto Rico law,
and kept her position open and available should she decide to
return.
On February 8, 2010, the SIF closed Colón's case, finding
that her emotional condition was not related to her employment.
From that date, Colón had fifteen days to request reinstatement
before being subject to termination. She did not request
The magistrate judge listened to the voicemail and concluded 12
that it was non-threatening and professional in both tone and
content. Colón, 2012 WL 3155140, at *14; see Colón, 869 F. Supp.
2d at 227.
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reinstatement. Rather, IAS held Colón's position open until March
8, 2010, approximately one month later, when she resigned.
III.
We review the district court's grant of summary judgment
de novo, construing the evidence in the light most favorable to the
non-movant and drawing all reasonable inferences in her favor.
Roman v. Potter, 604 F.3d 34, 38 (1st Cir. 2010); Iverson v. City
of Boston, 452 F.3d 94, 98 (1st Cir. 2006). Summary judgment is
appropriate under this rubric when "there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). We may affirm summary
judgment on any basis apparent in the record. Chiang v. Verizon
New Eng. Inc., 595 F.3d 26, 34 (1st Cir. 2010).
IV.
Colón's appellate brief raises a host of poorly
differentiated challenges to the district court's conclusion that, 13
on the undisputed evidence, neither her purported "demotion" in
January 2009 nor her suspension in June 2009 constituted unlawful
employment retaliation. We evaluate these challenges under the
familiar three-step burden shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Both the magistrate and district court judges found that 13
Colón had violated Puerto Rico's anti-ferreting rule. Colón, 869
F. Supp. 2d at 227-28; Colón, 2012 WL 3155140, at *11. There are
similar difficulties in the briefing of her argument on appeal.
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Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st
Cir. 2006); McMillan v. Mass. Soc'y for Prevention of Cruelty to
Animals, 140 F.3d 288, 309 (1st Cir. 1998).
Under the McDonnell Douglas framework, a plaintiff must
first establish a prima facie case of retaliation by showing that
(1) she engaged in protected conduct, (2) she was subject to an
adverse employment action, and (3) a causal connection existed
between the first and second elements. Noviello v. City of Boston,
398 F.3d 76, 88 (1st Cir. 2005). The burden then shifts to the
defendant to "articulate a legitimate, non-discriminatory reason
for its challenged actions." Provencher v. CVS Pharmacy, Div. of
Melville Corp., 145 F.3d 5, 10 (1st Cir. 1998) (citing Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)).
Finally, "[i]f the defendant does so, the ultimate burden falls on
the plaintiff to show that the proffered legitimate reason is in
fact a pretext and that the job action was the result of the
defendant's retaliatory animus." Fennell v. First Step Designs,
Ltd., 83 F.3d 526, 535 (1st Cir. 1996).14
A. The January 2009 "Demotion"
The magistrate judge and district court found on the
undisputed evidence that Colón's January 2009 participation in
As the appropriate standard for causation in a Title VII 14
employment retaliation claim is not at issue here, we acknowledge
but need not address the Supreme Court's recent grant of certiorari
in University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 978 (2013).
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cross-training, and concurrent removal from AAP responsibilities,
did not support an employment retaliation claim. Two independent
grounds supported that conclusion:
(1) Colón's reassignment to Business Partner
responsibilities did not amount to a materially adverse
employment action, as required to establish her prima
facie case, Colón, 2012 WL 3155140, at *14; and
(2) Colón failed to show that the defendants'
explanations for her reassignment to Business Partner
responsibilities were pretextual at the third stage of
McDonnell Douglas, id. at *13.
By failing to address the first ground for summary judgment in her
brief, Colón has waived any challenge she may have had, see
Fennell, 83 F.3d at 537, and we could affirm the district court on
that basis alone. Moreover, on the merits of the issue, the
district court rightly concluded that the record did not support
Colón's characterization of her reassignment to Business Partner
responsibilities as materially adverse. Colón, 869 F. Supp. 2d at
230.
Title VII's antiretaliation provision does not "immunize
. . . employee[s] from those petty slights or minor annoyances that
often take place at work and that all employees experience,"
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006);
rather, it seeks "to prevent employer interference with 'unfettered
access' to Title VII's remedial mechanisms," id. (quoting Robinson
v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Thus, to qualify as
materially adverse, an employer's challenged action "must be one
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that 'could well dissuade a reasonable worker from making or
supporting a charge of discrimination.'" Dixon v. Int'l Bhd. of
Police Officers, 504 F.3d 73, 81 (1st Cir. 2007) (quoting
Burlington, 548 U.S. at 57). Where, as here, the action in
question is a temporary change in job responsibilities, has no
effect on an employee's salary or job title, and is applied to
similarly situated employees without complaint, a plaintiff faces
an uphill battle in establishing that it was materially adverse.
See, e.g., Ahern v. Shinseki, 629 F.3d 49, 56 (1st Cir. 2010);
Morales-Vallellanes v. Potter, 605 F.3d 27, 37-39 (1st Cir. 2010).
As to the second ground for summary judgment, we briefly
describe and reject Colón's two challenges to the district court's
analysis on the issue of pretext. First, Colón objects to the
district court's earlier conclusion at the second stage in
McDonnell Douglas that IAS furnished a legitimate business
rationale for reassigning her AAP and Compensation responsibilities
to others. Colón argues that because Monge did not complete her
review of the 2008 AAP until July 2009, the deficiencies she 15
allegedly found therein could not justify IAS's decision six months
earlier, in January 2009, to assign Colón to exclusively Business
Because we conclude that the defendants' stated interest in 15
creating a more flexible HR Department provides an independently
legitimate basis for Colón's reassignment, we need not address her
challenges to certain of the conclusions drawn in Monge's July 2009
review.
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Partner responsibilities. But that argument does not go to the 16
defendants' independent rationale for her reassignment, namely,
that Mercado wanted to create a more flexible HR staff by way of
the January 2009 cross-training program. And we agree with the
district court that this rationale provides an independent and
legitimate basis for the defendants' actions. Colón, 869 F. Supp.
2d at 229.
Colón's next objection is that, even if the defendants
furnished a legitimate business rationale for her participation in
cross-training, the temporal proximity between that decision and
her submission of the 2008 AAP created a triable issue of fact as
to whether the defendants' true intentions were retaliatory. Not
so.
As an initial matter, the record does not establish that
Mercado had even seen the flawed 2008 AAP Colón prepared before
deciding that she would participate in cross-training.
Additionally, even if Mercado had reviewed Colón's submission prior
to including her among the cross-training participants, "[t]he mere
proximity of these acts . . . without any indication of
discrimination or retaliation does not serve to establish pretext
by defendants." Colón, 2012 WL 3155140, at *9. In fact, the
defendants had previously cross-trained Colón in January 2008 and,
Of course, this objection ignores that the very reason IAS 16
sought Monge's assistance in the first place was that Mercado had
found in January 2009 that Colón's AAP was deficient.
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in doing so again in January 2009, assigned three other employees
to participate in the program with her. Conversely, Colón has not
produced any evidence to discredit the legitimacy of the
defendants' stated interest in conducting cross-training or to
show, as required, that the defendants' true motivation was
retaliatory animus. See Mesnick v. Gen. Elec. Co., 950 F.2d 816,
829 (1st Cir. 1991).
B. The June 2009 Suspension
The magistrate judge and district court also concluded
that Colón's June 2009 suspension did not give rise to an
actionable employment retaliation claim. In so concluding, both
judges found that regardless of whether Pérez had or had not
requested that Colón submit the confidential salary information,
the defendants had provided two uncontested bases which justified
her suspension:
(1) Colón had not sought prior approval from Mercado, as
instructed, before faxing the confidential salary
information to the SIF, Colón, 869 F. Supp. 2d at 223
n.4; and
(2) Colón had kept proprietary salary information on her
personal "pen drive" and non-password-protected "H:
drive" in violation of IAS policy, id. at 224.
The district court found at the first stage of McDonnell Douglas
that neither of these activities constituted protected conduct, id.
at 229-30, and, at the third stage, that Colón could not
demonstrate that a suspension predicated on either basis was
pretextual, id.
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Whether or not she viewed the information as requested by
the SIF, Colón chose to disclose confidential salary information
not only about Díaz, but also about the unnamed male employee, as
we have described. This was a direct violation of a legitimate IAS
policy and of her supervisor's clear instruction that she request
authorization from him prior to making any disclosures. Nothing in
Title VII requires that such policies and instructions, reasonable
on their face, be held invalid. And Colón offers not one iota of
evidence that the prior authorization requirement was instituted in
order to hide the information requested. The record instead shows
that IAS did cooperate with the SIF's investigation.
Further, Colón does not deny "that she had confidential
information on her personal drives," which is not permitted under
IAS policy. Colón, 869 F. Supp. at 229. Additionally, Colón has
offered no justification of any sort for keeping the proprietary
information on her non-password-protected "H: drive," and that
concession is also fatal to her claims predicated on the June 2009
suspension.
V.
Because no reasonable fact-finder could resolve these
issues in Colón's favor, see Cortés-Irizarry v. Corporación Insular
de Seguros, 111 F.3d 184, 187 (1st Cir. 1997), the district court's
entry of summary judgment is affirmed.
So ordered.
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