United States Court of Appeals For the First Circuit

No. 20-1901

MIGUEL RODRÍGUEZ-SEVERINO,

Plaintiff, Appellant,

v.

UTC AEROSPACE SYSTEMS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before

Gelpí, Lipez, and Thompson, Circuit Judges.

Juan M. Frontera-Suau, with whom Frontera Suau Law Offices, PSC, was on brief, for appellant. Miguel A. Rivera-Arce, with whom McConnell Valdés LLC was on brief, for appellee.

October 27, 2022 GELPÍ, Circuit Judge. Plaintiff-Appellant Miguel

Rodríguez-Severino ("Rodríguez-Severino") was an employee of

Defendant-Appellee UTC Aerospace Systems ("UTC") in its

Environmental, Health and Safety ("EH&S") department at its

manufacturing plant in Santa Isabel, Puerto Rico. This appeal

arises from an incident during a March 2016 training, when

Rodríguez-Severino alleges that a contractor giving the training

made a sexually explicit joke and that his supervisor, Kenneth

Cariño ("Cariño"), failed to stop the contractor and instead joined

in. Rodríguez-Severino filed a complaint with the company's

ombudsman and then filed several complaints with two agencies,

alleging retaliatory behavior in response by UTC, and Cariño in

particular, which forms the basis for his retaliation claim under

Title VII of the Civil Rights Act of 1964 ("Title VII"). The

district court granted UTC's motion for summary judgment on all

claims. Finding no error in the district court's decision, we

affirm.

I. Background

When reviewing a district court's grant of summary

judgment, we consider the facts in the light most favorable to the

non-moving party, Rodríguez-Severino, and draw reasonable

inferences in their favor. CMI Capital Mkt. Inv., LLC v. González–

Toro,

(1st Cir. 2008). The factual premise for

this appeal is somewhat complicated by Rodríguez-Severino's

- 2 - alleged failure to comply with the district court's Local Rule 56,

an "anti-ferret rule," in his opposition to UTC's motion for

summary judgment. See D.P.R. Civ. R. 56. Determining that

Rodríguez-Severino failed to counter UTC's statement of material

facts, the district court deemed the uncontroverted facts admitted

under Local Rule 56(e), which provides that facts contained in a

statement of material facts "shall be deemed admitted unless

properly controverted." D.P.R. Civ. R. 56(e). The district court

also declined to consider 100 additional facts asserted by

Rodríguez-Severino in his opposing statement of material facts

because it concluded that these facts were not, as required by

Local Rule 56(e), supported by specific citations to evidence in

the summary judgment record. For the reasons we explain infra, we

find no abuse of discretion in the district court's "deeming"

order, and accordingly, we review the facts as set forth in UTC's

statement of material facts. See CMI Capital Mkt. Inv., LLC,

.

Rodríguez-Severino, a member of the Air National Guard,

was born in the Dominican Republic and began living in Puerto Rico

when he was approximately eight years old. He began working for

UTC as an EH&S Specialist in the company's EH&S department in its

manufacturing facility located in Santa Isabel, Puerto Rico in

June 2015. UTC designs and manufactures aerospace components.

The EH&S department is responsible for monitoring and ensuring the

- 3 - health and safety of all UTC employees. Cariño, the EH&S

department manager, was his supervisor during all relevant times.

Rodríguez-Severino, like other new hires, was initially assigned

to the first work shift, which ran from 8:00 AM - 5:00 PM.

In March 2016, Rodríguez-Severino attended a training

that was being offered to members of the EH&S department. There,

he alleged that the contractor giving the training made a sexually

explicit joke and that Cariño failed to stop the contractor from

doing so and instead joined in the joke, laughed, and repeated the

joke.1 Shortly thereafter, Rodríguez-Severino filed a confidential

complaint through UTC's ombudsman program relaying the incident.

In April 2016, Eddie Del Toro ("Del Toro"), a Human Resources

("HR") manager, was assigned to conduct an investigation of the

internal complaint. He was not provided the name of the employee

who had made the complaint and began an investigation of the events

that transpired during the training. As part of the investigation,

Cariño was interviewed, but was not informed of who had filed the

complaint,2 and was cleared of any wrongdoing. On June 30, 2016,

1 Translated from Spanish, the inappropriate comment referring to the prohibition on carrying hazardous material through a tunnel in Puerto Rico was: "You know you cannot go in the tunnel, don't go in the tunnel. You don't take it up the tunnel, or can't put it in." We acknowledge Rodríguez-Severino's assertion on appeal that 2

due to the nature of the investigation, it was not difficult for Cariño to identify who had filed the confidential complaint. We discuss this contention in more detail infra, ultimately concluding that Cariño did not learn a complaint had been made

- 4 - Rodríguez-Severino informed Del Toro that it was he who had brought

a complaint to the ombudsman. Del Toro did not share this

information with any other UTC employee, and Rodríguez-Severino

did not tell anybody else that he had filed the complaint.

A. First EEOC Charge

On November 7, 2016, Rodríguez-Severino filed a charge

with the Equal Employment Opportunity Commission ("EEOC"). We

will refer to this as the first EEOC charge. In it, he alleged

color and national origin discrimination by UTC, and Cariño

specifically, in addition to retaliation for filing a complaint

with the ombudsman. The charge summarized the acts that Rodríguez-

Severino considered to be in retaliation for bringing an ombudsman

complaint. One of the alleged retaliatory acts was a performance

evaluation that took place in April 2016 where Cariño gave

Rodríguez-Severino a score of "progressing." Rodríguez-Severino

also alleged that there was an activity at the Occupational Safety

and Health Administration ("OSHA") offices in San Juan, Puerto

Rico to which all other EH&S professionals were invited, except

for him. UTC alleges Rodríguez-Severino was excluded because he

was working the second shift at the time, which ran from 2:00 PM

to 10:00 PM, and the event took place during the first shift.

Rodríguez-Severino alleged in the first EEOC charge that though he

about the joke during training until Rodríguez-Severino filed the first EEOC charge.

- 5 - requested to attend, he was told that he had to cover the second

shift and could not leave that shift unattended.

Rodríguez-Severino further alleged retaliation in his

change to a newly created third shift, which ran from 10:00 PM to

6:00 AM. He expressed concern to Cariño and Del Toro that the

change in shift would affect his ability to work on certain

projects but ultimately, the change was made and he began working

on the third shift in June 2016. UTC contends that he was moved

to the third shift because he was the employee with the least

seniority at the time.

Additionally, Rodríguez-Severino alleged further

retaliation through email. Rodríguez-Severino sent an email in

May 2016 to his co-workers, supervisors, and the General Manager

in which he suggested various areas in which the company was in

need of corrective action, which led another employee in the EH&S

department to respond with a contrasting opinion. Cariño responded

with an email to both Rodríguez-Severino and the other employee

who had responded asking that such discussions be held internally

within the EH&S department rather than over group email.

Rodríguez-Severino alleged in the first EEOC charge that this made

him feel embarrassed and disrespected. He additionally alleged a

"pattern of retaliation and harassment" between himself and Cariño

where he was excluded, treated disrespectfully, and singled out

for mistreatment.

- 6 - As a member of the Air National Guard, Rodríguez-

Severino often had to attend weekend trainings which required him

to take time off. He alleged that Cariño forgot about these

weekends and continually asked about them and what they were, and

commented that they took place often. Nevertheless, Rodríguez-

Severino was always able to attend said trainings and admitted it

did not affect his salary or benefits to do so, even when he

started working the third shift.

UTC alleged that Rodríguez-Severino's overall

performance was deficient. It alleged that Rodríguez-Severino

failed to properly request his time off, and took days off that

were not authorized or that had been explicitly denied. It also

alleged that Rodríguez-Severino failed to communicate adequately

and did not maintain the type of communication with the department

that was expected of him. Finally, Rodríguez-Severino was

insubordinate on various occasions and purposefully disregarded

his supervisor's instructions.

For example, at the end of October 2016, Cariño attempted

to schedule a meeting with Rodríguez-Severino and sent him emails

on October 28, 2016 and November 1, 2016 requesting such a meeting

to take place at the end of Rodríguez-Severino's shift, the third

shift. Rodríguez-Severino did not answer or attend. Though the

initial meetings were not compulsory, various meetings were then

scheduled with Rodríguez-Severino, Cariño, and the HR director

- 7 - which were labeled compulsory. Rodríguez-Severino declined to

attend those meetings and was not available on his corporate cell

phone. He was informed that he would not be allowed to return to

work until the meeting was held. The meeting was eventually held

on November 10, 2016 after which Rodríguez-Severino was cleared to

return to work. In the meeting, Rodríguez-Severino, Cariño, and

the HR director discussed Rodríguez-Severino's performance and the

difficulty with scheduling the meeting, as well as his expected

hours on the third shift.

In July 2017, the EEOC issued a dismissal of the first

EEOC charge, finding no violation.

B. Second EEOC Charge

In January of 2017, Rodríguez-Severino filed a second

charge before the EEOC, which we will refer to as the second EEOC

charge. In it, he alleged retaliation on the part of Cariño

because of his complaint with the ombudsman. He repeated many of

the allegations appearing in his first charge, as well as

harassment by Cariño in December of 2016, beginning when Rodríguez-

Severino requested time off, which was approved, in November 2016.

On the day that his time off was scheduled to begin, Rodríguez-

Severino informed Cariño that he would need to reschedule for mid-

December. Though the leave was initially approved, Cariño then

had to shift Rodríguez-Severino's days off to a week earlier due

to other requests for time off that had already been approved. On

- 8 - the day that Rodríguez-Severino was supposed to return to work, he

notified Cariño that he would be out sick for eight days,

coinciding with the week for which he had originally requested

leave. Rodríguez-Severino alleged that Cariño harassed him over

email in the days leading up to his vacation leave by sending him

work-related emails. The outcome of this second EEOC charge is

undisclosed in the record.

C. VETS Charge

In March 2017, Rodríguez-Severino brought a charge

before the Office of the Assistant Secretary for Veteran's

Employment and Training ("VETS") of the federal Department of

Labor, alleging discrimination in violation of his rights under

the Uniformed Services Employment and Reemployment Rights Act

("USERRA").3 In it, he described the various incidents of

discrimination and retaliation described above, specifically

regarding the meeting in 2016 that he failed to attend, alleging

without further information that Cariño's actions were

discriminatory and retaliatory due to his military status. He

also described additional incidents that he alleged were

retaliatory. First, that Cariño requested Rodríguez-Severino

The district court deemed this claim waived and abandoned 3

at the summary judgment stage. Rodríguez-Severino does not raise the issue again on appeal. Therefore, we also consider the claim waived before this court and limit our discussion of the underlying facts.

- 9 - resend his military drill schedule. Second, that Cariño requested

Rodríguez-Severino work during the second shift on Friday, March

3, 2017 when he had already worked the third shift the night

before. Rodríguez-Severino failed to report to work for said

shift. Following an investigation, in June 2017, the VETS office

issued a letter stating that there was no evidence supporting

Rodríguez-Severino's allegations.

D. Third EEOC Charge

In June 2017, Rodríguez-Severino filed a third EEOC

charge alleging retaliation. He repeated many of the incidents

that were included in the VETS charge and relayed an incident that

took place in March 2017. On that occasion, Rodríguez-Severino

was on a shift when a piece of equipment, the Remstar Storage, had

technical difficulties. He contacted outside contractors to

repair the machine, but then refused to allow them to perform the

work when they arrived because they lacked the required OSHA

certifications needed to perform the work in a confined space,

where the machine was located. However, there existed a "Confined

Space Inventory and Inspection Sheet" which allowed the equipment

to be reclassified, permitting the work to continue without the

OSHA certification. Rodríguez-Severino neglected to consult the

sheet and did not contact Cariño to ask for his advice. Instead,

Cariño was contacted by the manufacturing supervisor who informed

him that Rodríguez-Severino was not following the proper protocol.

- 10 - Cariño then contacted Rodríguez-Severino to resolve the problem.

Following a report by Rodríguez-Severino about the incident,

Cariño's behavior was investigated by Myrna Vélez ("Vélez"), HR

manager, who determined that he had acted appropriately.

Moreover, Rodríguez-Severino made various other

allegations regarding retaliation by Cariño. He alleged that all

employees except for him were allowed to leave after completing an

audit, though he had not been working on the audit. He further

alleged that he was not allowed to take his birthday off from work,

and that he was not allowed to take part in certain office

activities that were offered during the first shift when he was

working the third shift. Finally, he alleged that he was barred

from returning to work after being told that he needed to submit

certain medical documentation after completing medical treatment,

as was required by company policies. After filing his third EEOC

charge, Rodríguez-Severino received a right-to-sue letter in July

2017.

E. Transfer to OPEX

Following these incidents between Rodríguez-Severino and

Cariño, HR remained involved. Due to the difficult working

relationship between the two men, HR decided that Rodríguez-

Severino would be transferred to the Operational Excellence

Department ("OPEX"), a division of UTC, where he would continue to

work as a EH&S professional, but with a different supervisor. The

- 11 - transfer would give him an opportunity to improve his performance

as an EH&S professional, and would also give him a fresh start

with a new supervisor. Rodríguez-Severino maintained his same

salary and benefits in his new position but began working the first

shift. He continued to provide support to the EH&S department in

this role and at the time the lawsuit commenced, he was still an

employee of UTC.

F. Procedural History

Rodríguez-Severino brought this action in the District

of Puerto Rico in October 2017, alleging retaliation under

Title VII, 42 U.S.C. § 2000e–2 et seq., discrimination and

retaliation under USERRA,

et seq., and violations

of Puerto Rico Law 115 ("Law 115"), P.R. Laws Ann. tit. 29, § 194a.

He received a right-to-sue letter on July 6, 2017 following the

filing of his third EEOC discrimination charge and filed the

complaint within the ninety-day period. On January 23, 2020,

following discovery, UTC moved for summary judgment. On July 31,

2020, the district court granted the motion for summary judgment

and dismissed the case with prejudice, finding that Rodríguez-

Severino failed to make a prima facie showing of retaliation, and

(in the alternative) failed to rebut UTC's explanations for why

the behavior in question was non-discriminatory in nature. The

district court emphasized that Rodríguez-Severino's opposition to

UTC's statement of uncontested material facts was noncompliant

- 12 - with Local Rule 56, with many of his attempts to deny or qualify

facts either being irrelevant or consisting of speculation,

generalities, improbable inferences, and conclusory assertions.

As such, the district court "rejected almost all of [Rodríguez-

Severino's] denials of [UTC's] proffered facts." Rodríguez-

Severino timely appealed.

II. Discussion

A. Local Rule 56

Rodríguez-Severino first argues on appeal that the

district court was incorrect when it concluded that his statement

in opposition to UTC's statement of uncontested material facts was

noncompliant with Local Rule 56 and alleges that he did properly

controvert UTC's factual allegations. Specifically, Rodríguez-

Severino asserts that the district court incorrectly disregarded

his citations to his EEOC charges which were made under penalty of

perjury.

1. Standard of Review

In the Local Rule 56 context, at the summary judgment

stage, "we review the district court's deeming order for abuse of

discretion." P.R. Am. Ins. Co. v. Rivera-Vázquez,

(1st Cir. 2010) (citing CMI Capital Mkt. Inv., LLC,

). Owing to the district court's proximity to both the case

itself and the local rules, "[t]his entails 'a special degree of

deference . . . to [the] court's interpretation of its own local

- 13 - rules.'"

(second and third alterations in original) (quoting

Crowley v. L.L. Bean, Inc.,

(1st Cir. 2004)).

2. Analysis

Local Rule 56 of the United States District Court for

the District of Puerto Rico requires that a motion for summary

judgment "be supported by a separate, short, and concise statement

of material facts, set forth in numbered paragraphs, as to which

the moving party contends there is no genuine issue of material

fact to be tried." D.P.R. Civ. R. 56(b). The party opposing the

motion for summary judgment must then "submit with its opposition

a separate, short, and concise statement of material facts. The

opposing statement shall admit, deny or qualify the facts

supporting the motion for summary judgment by reference to each

numbered paragraph of the moving party's statement of material

facts."

(c). The facts themselves must be supported by "a

citation to the specific page or paragraph of identified record

material supporting the assertion."

(e). Importantly, the

court may disregard facts if they are not supported by such a

citation.

Lastly, facts contained either in the supporting

or opposing statement of material facts if supported by record

citations "shall be deemed admitted unless properly controverted."

"When the nonmovant fails to comply with the standards

of Local Rule 56, 'a district court is free, in the exercise of

- 14 - its sound discretion, to accept the moving party's facts as

stated.'" Advanced Flexible Cirs., Inc. v. GE Sensing & Inspection

Techs. GmbH,

(1st Cir. 2015) (quoting Cabán

Hernández v. Philip Morris USA, Inc.,

(1st Cir.

2007)). Said rule, aptly referred to as an "anti-ferret rule," is

intended to protect the district court from ferreting through the

summary judgment record in search of disputed material facts and

prevent litigants from shifting that burden onto to the court.

CMI Capital Mkt. Inv., LLC,

("The purpose of this

rule is to relieve the district court of any responsibility to

ferret through the record to discern whether any material fact is

genuinely in dispute."). We have emphasized before the importance

of following said local rule and have implored litigants to comply,

or ignore it "at their peril." Mariani-Colón v. Dep't of Homeland

Sec. ex rel. Chertoff,

(1st Cir. 2007) (quoting

Cabán Hernández,

).

In evaluating Rodríguez-Severino's challenge to the

district court's deeming order under Local Rule 56, we are mindful

that "Local Rule 56 is in service to Federal Rule of Civil

Procedure 56." Tropigas de P.R., Inc. v. Certain Underwriters at

Lloyd's of London,

(1st Cir. 2011). Under Federal

Rule of Civil Procedure 56, "a party cannot successfully oppose a

motion for summary judgment by resting 'upon mere allegations or

denials of his pleading.'" Garmon v. Nat'l R.R. Passenger Corp.,

- 15 -

(1st Cir. 2016) (alteration in original) (quoting

Pina v. Child.'s Place,

(1st Cir. 2014)).

"[M]ere allegations are not entitled to weight in the summary

judgment calculus." Borges ex rel. S.M.B.W. v. Serrano-Isern,

(1st Cir. 2010). The nonmoving party must instead

marshal sufficient evidence to show that a genuine issue of

material fact exists. Cherkaoui v. City of Quincy,

(1st Cir. 2017). "Like [Federal] Rule [of Civil Procedure] 56

itself, [Local Rule 56] makes clear that its focus is on facts,

not speculation or argumentation." Tropigas de P.R.,

. Moreover, "[u]nder federal law, an unsworn statement signed

under penalty of perjury may be used, in lieu of a sworn statement

or affidavit, to support or oppose a motion for summary judgment."

Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit

Int'l, Inc.,

(1st Cir. 1993) (citing

); accord Ramírez Rodríguez v. Boehringer Ingelheim Pharms.,

Inc.,

(1st Cir. 2005).

The district court found that Rodríguez-Severino's

opposition to UTC's statement of uncontested material facts was

procedurally noncompliant with Local Rule 56 for several reasons.

First, the district court found that many of Rodríguez-Severino's

responses failed to contradict the proffered facts, included

extraneous and irrelevant details, and consisted of speculation

and conclusory assertions. Additionally, the district court found

- 16 - that many of the qualifications and denials were not properly

supported by a citation. Some had no record citation at all, while

others provided a citation to a document or regulation but "failed

to point to the relevant page and line" that supported the

assertion. Rodríguez-Severino's opposition also included his own

statement of 100 material facts not in controversy, as permitted

by Local Rule 56(c) ("The opposing statement may contain in a

separate section additional facts, set forth in separate numbered

paragraphs and supported by a record citation as required by

subsection (e) of this rule."). The district court rejected almost

all of these facts, finding that most were supported by allegations

contained in his complaint or citations to his EEOC charges, both

of which the court found consisted of allegations rather than

direct evidence. Finally, the district court disagreed with

Rodríguez-Severino's contention that, based on Reeves v. Sanderson

Plumbing Products, Inc.,

(2000), UTC cannot support

its statement of material facts with self-serving statements from

interested witnesses such as those UTC submitted from Cariño, Del

Toro, and HR Associate Director Myrna Vélez.

Here, we see no abuse of discretion in the district

court's conclusion that Rodríguez-Severino's opposition to the

statement of uncontested material facts filed by UTC in moving for

summary judgment was procedurally noncompliant with Local Rule 56.

Accordingly, we affirm the district court's decision to deem UTC's

- 17 - statement of material facts admitted. As the district court found,

some of Rodríguez-Severino's factual assertions did not actually

oppose the truth of the statement UTC offered, were unaccompanied

by "a citation to the specific page or paragraph of identified

record material supporting the assertion," D.P.R. Civ. R. 56(e),

or cited to a lengthy Federal Regulation without providing a more

specific location, see Ruiz Rivera v. Riley,

(1st

Cir. 2000) ("[F]ailure to present a statement of disputed facts,

embroidered with specific citations to the record, justifies the

court's deeming the facts presented in the movant's statement of

undisputed facts admitted." (emphasis added)). In addition, some

of Rodríguez-Severino's denials and qualifications cited to part

of the summary judgment record that were either not on point,

conclusory, or speculative.

We offer some examples to illustrate our conclusion,

drawn from Rodríguez-Severino's opposition to UTC's statement of

uncontested facts. At paragraph 69 of its statement of uncontested

facts, UTC stated that Cariño only learned of the specifics of the

internal ombudsman complaint and who had brought it after

Rodríguez-Severino filed his first EEOC charge in November of 2016.

Rodríguez-Severino denied this statement, citing to his ombudsman

complaint and his own statement of uncontested material facts.

But none of the information at these citations supports the fact

that Cariño knew of the ombudsman complaint and that Rodríguez-

- 18 - Severino had filed it before Cariño knew about the first EEOC

charge. His citation to the ombudsman complaint itself does not

establish that Cariño knew it was filed or who had filed it --

indeed, the ombudsman form states that it is a "confidential

communication channel." Rodríguez-Severino's citation to

paragraphs 32-56 of his own statement of material facts not in

controversy is also unsupportive. The facts in that section

recount Cariño's treatment of Rodríguez-Severino, the creation of

the third shift, and that Rodríguez-Severino informed Del Toro

that he had filed the ombudsman complaint, but they do not

establish that Cariño learned of Rodríguez-Severino's confidential

ombudsman complaint prior to the first EEOC charge.

Another example: At paragraph 90 of its statement of

uncontested material facts, UTC stated that Rodríguez-Severino was

given two weeks to consider his assignment to the third shift, and

during that time he did not discuss his transfer with Cariño or

inquire about the reasons for the creation of the third shift.

Rodríguez-Severino denied this fact, citing to his own statement

of material facts at paragraphs 34-54. Though these paragraphs

discuss the creation of the third shift and Rodríguez-Severino's

assignment to it, they do not provide any information about

conversations related to this assignment or inquiries regarding

the creation of a third shift.

- 19 - We offer a final example. At paragraph 63 of its

statement of uncontested material facts, UTC stated that Cariño

was not informed that someone had filed a complaint when he was

interviewed by HR, rather he was told that he was being interviewed

as part of an investigation. Rodríguez-Severino denied this fact,

citing only to his ombudsman complaint. This confidential,

internal complaint and the facts contained therein do not refute

UTC's contention that Cariño did not know he was being interviewed

because of a complaint filed against him.

The above examples illustrate how Rodríguez-Severino

failed to properly controvert UTC's statement of uncontested

facts. He thereby failed to comport with Local Rule 56 and oppose

the facts supporting UTC's motion for summary judgment. Based on

our thorough review of the record, we see no abuse of discretion

in the district court's ruling on this point.

Rodríguez-Severino also argues that the district court

was obliged under Local Rule 56 to accept citations to allegations

contained in his EEOC charges, to which he cites repeatedly in his

own statement of uncontested material facts under Local Rule 56(c).

Rodríguez-Severino, relying on Medfit Int'l, Inc., argues that

these unsworn statements were made under penalty of perjury and

therefore should have been given more credence by the district

court. See

. Instead, the district court stated

that mere allegations are not evidence and cannot be used to defeat

- 20 - a summary judgment motion and ruled that Rodríguez-Severino needed

to bring forth direct evidence of his claims.4

Rodríguez-Severino is correct that he could choose to

rely on his own unsworn statements made under penalty of perjury

because this court will indeed recognize such a statement in lieu

of an affidavit in support of a motion for summary judgment. See

Ramírez Rodríguez,

("unsworn statement under penalty

of perjury . . . is admissible for summary judgment purposes");

Medfit Int'l, Inc.,

(unsworn written statement may

be given same weight as an affidavit when the requirements of

-- statement signed "under penalty of perjury that

[the statements are] true and correct" -- are met). And for good

reason: The information set out in these statements would be

direct evidence if Rodríguez-Severino had rewritten the

information in the form of an affidavit and submitted the affidavit

with his opposition to UTC's motion for summary judgment or, if

this case went to trial, Rodríguez-Severino offered this

information as direct testimony. Rodríguez-Severino's statement

of undisputed facts did not rely on allegations from the complaint

he filed to initiate this federal action but on statements he

signed under penalty of perjury and submitted to the EEOC. As

As the district court noted, almost all of Rodríguez- 4

Severino's factual assertions in his own statement of material facts under Local Rule 56(c) cited to the EEOC charges he had filed.

- 21 - such, the district court should not have completely discounted

these documents as part of Rodríguez-Severino's opposition to

UTC's summary judgment motion and should have accepted his own

statement of material facts.

That said, the district court's error on this point does

not affect our conclusion that it did not abuse its discretion by

deciding to deem UTC's statement of undisputed facts to be

uncontroverted for the other reasons we discussed supra and because

Rodríguez-Severino failed to use these parts of the record to

properly controvert UTC's statement or, as we will soon discuss,

to identify any genuine issues of material fact about his Title

VII retaliation claim. See Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991) ("Not every discrepancy in the proof is

enough to forestall a properly supported motion for summary

judgment; the disagreement must relate to some genuine issue of

material fact.").

Finally, we address a further argument Rodríguez-

Severino makes regarding UTC's statement of uncontested facts.

Relying on Reeves, he argues that the statements from Cariño, Del

Toro, and Vélez should not be allowed in support of UTC's motion

for summary judgment because they are an interested party and their

statements are therefore self-serving. In so arguing, Rodríguez-

Severino relies on the following passage from Reeves:

- 22 - Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."

(citation omitted) (quoting 9A C. Wright & A.

Miller, Federal Practice and Procedure § 2529 (2d ed. 1995)).

Nevertheless, we have already addressed this precise

argument in Dennis v. Osram Sylvania, Inc.,

(1st Cir.

2008). There, as here, the appellant argued that the district

court at the summary judgment stage should not have credited

certain declarations because the declarants were interested

parties.

. In response, we held that the appellant

misread the scope of Reeves and explained that "[a]t summary

judgment we need not exclude all interested testimony,

specifically testimony that is uncontradicted by the nonmovant."

(citing Lauren W. ex rel. Jean W. v. DeFlaminis,

,

271–72 (3d Cir. 2007)). Doing so, we acknowledged, would make it

impossible for employers to defend against retaliation claims,

especially at the second step of the burden-shifting framework

described infra.

As we concluded above, Rodríguez-Severino

failed to adequately controvert UTC's statement of uncontested

material facts and, like the appellant in Dennis, he reads Reeves

- 23 - too narrowly to compel the result he seeks. We decline to find an

abuse of discretion in the district court's decision.

B. Grant of Summary Judgment

1. Standard of Review

We review a district court's grant or denial of summary

judgment de novo, examining the record in the light most favorable

to the nonmovant and drawing all reasonable inferences in that

party's favor. Murray v. Kindred Nursing Ctrs. W. LLC,

(1st Cir. 2015). The party moving for summary judgment

must show that "there is no genuine dispute as to any material

fact" and that it "is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).

2. Analysis

a. Title VII Retaliation Claim

Rodríguez-Severino argues that the district court

erroneously denied his retaliation claim under Title VII. He

argues that the district court's conclusion that Cariño did not

know about his ombudsman complaint was erroneous and that the

actions taken against him following that complaint constituted

adverse employment actions. He contends that circumstantial

evidence from that time raises an inference that Cariño did know

about his complaint because they began treating him differently.

Finally, even relying only on Cariño's actions following the first

EEOC charge, when it was clear he knew that Rodríguez-Severino had

- 24 - filed a complaint against him, Rodríguez-Severino posits that the

district court erroneously concluded that there was no adverse

employment action during that period, relying primarily on

Burlington Northern & Santa Fe Railway Co. v. White,

(2006). Rodríguez-Severino, however, fails to challenge the

district court's conclusion that, even if he had made out a prima

facie case, he was unable to rebut the non-discriminatory reasons

provided by UTC for its actions against him. Instead, he trains

his briefing to us primarily on the components of his prima facie

case and why he has met them. Therefore, we likewise primarily

consider that aspect of the district court's ruling in our de novo

review.

"Title VII bars employers from retaliating against an

. . . employee because []he 'has opposed any practice made an

unlawful employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under this

subchapter.'" Garayalde-Rijos v. Municipality of Carolina,

(1st Cir. 2014) (quoting 42 U.S.C. § 2000e–3(a)). We

utilize a familiar burden-shifting framework to evaluate

retaliation when direct evidence is lacking, as it is here. To

establish a prima facie case of retaliation, Rodríguez-Severino

must first show: "(1) []he engaged in protected conduct; (2) []he

suffered an adverse employment action; and (3) that a 'causal nexus

- 25 - exists between the protected [conduct] and the adverse action.'"

Id. (third alteration in original) (quoting Ponte v. Steelcase

Inc.,

(1st Cir. 2014)). "Once the plaintiff

makes out this prima facie case, the burden shifts to the defendant

to articulate a legitimate, non-retaliatory explanation for its

actions." Planadeball v. Wyndham Vacation Resorts, Inc.,

(1st Cir. 2015). If the defendant is able to do so, the

burden then returns to the plaintiff "to show that the defendant's

explanation is a pretext for unlawful retaliation."

The district court, relying on its assessment of the

uncontested facts, first found that Rodríguez-Severino was unable

to rebut UTC's assertion that Cariño was unaware that Rodríguez-

Severino had filed the complaint with the ombudsman's office.

Therefore, for purposes of retaliation, the district court found

that Cariño did not know that Rodríguez-Severino had filed a

complaint until November 2016 when he made his first EEOC charge.

The district court further held that even if Cariño was aware of

the earlier complaints, there was not sufficient evidence of a

hostile work environment to rise to the level of an adverse

employment action and, even assuming Rodríguez-Severino could make

out a prima facie case of retaliation, UTC has proffered an

adequate, non-retaliatory reason for its actions. Moreover, the

district court found that none of UTC's actions toward Rodríguez-

Severino following the first EEOC charge in November 2016, which

- 26 - Cariño was aware of and which unquestionably constitutes protected

conduct, constituted adverse employment actions. The court thus

concluded that Rodríguez-Severino could not make out a prima facie

case of retaliation.

As a threshold matter, for us to consider any of Cariño's

actions before November 2016, Rodríguez-Severino must show that

Cariño was aware of his ombudsman complaint "[b]ecause 'one cannot

have been motivated to retaliate by something he was unaware of.'"

Delaney v. Town of Abington,

(1st Cir. 2018) (quoting

Medina-Rivera v. MVM, Inc.,

(1st Cir. 2013)).

Rodríguez-Severino asserts on appeal that due to the nature of the

investigation, it was not difficult for Cariño to determine who

had filed the confidential complaint. He alleges this is so

because the training where the inappropriate comment was made was

given to ten employees and only five were interviewed as part of

the investigation, including Cariño, and that Rodríguez-Severino

himself was not interviewed. Even drawing all reasonable

inferences in favor of Rodríguez-Severino, we cannot agree with

the assertion that Cariño would have known Rodríguez-Severino

filed the complaint. There were four other employees apart from

Rodríguez-Severino present at the training that were not

interviewed and easily could have been the complainant. Moreover,

it is undisputed that Rodríguez-Severino did not tell anybody that

he had filed the ombudsman complaint until June of 2016, when he

- 27 - voluntarily told Del Toro. Del Toro did not share this information

with anyone else, and Rodríguez-Severino did not tell anyone else

about the ombudsman complaint. Therefore, we agree with the

district court that Cariño was not aware of the ombudsman complaint

and only became aware of any complaint in November 2016, when

Rodríguez-Severino filed his first EEOC charge. Accordingly, any

actions taken by Cariño prior to the first EEOC charge in November

2016 do not constitute retaliation, as one cannot retaliate without

any knowledge of the protected activity. See Delaney,

.

With this time frame squarely in mind, we turn to the

requirements to make out a prima facie case for retaliation:

First, protected activity. Neither party disputes that the EEOC

charge constituted protected activity. Therefore, we move to the

second prong of the prima facie case: whether Rodríguez-Severino

suffered an adverse employment action as a result of said protected

conduct. Marrero v. Goya of P.R., Inc.,

(1st Cir.

2002).

Examples of adverse employment actions include

"demotions, disadvantageous transfers or assignments, refusals to

promote, unwarranted negative job evaluations, and toleration of

harassment by other employees."

We measure whether an action

was adverse using an objective standard, Blackie v. Maine,

(1st Cir. 1996), and accordingly "the mere fact that an

- 28 - employee is displeased by an employer's act or omission does not

elevate that act or omission to the level of a materially adverse

employment action."

"[A] plaintiff may satisfy this

requirement by showing that 'a reasonable employee would have found

the challenged action materially adverse, "which in this context

means it well might have 'dissuaded a reasonable worker from making

or supporting a charge of discrimination.'"'" Morales-Vallellanes

v. Potter,

(1st Cir. 2010) (quoting Burlington N.,

).

In his briefing on the issue, Rodríguez-Severino claims

the following were adverse employment actions taken against him,

primarily by Cariño: (1) The creation of a new third shift by

Cariño, to which Rodríguez-Severino was the only assigned employee

and his alleged corresponding deprivation of training

opportunities and ability to continue working on certain projects;

(2) Cariño's attitude towards Rodríguez-Severino, shown through

discrete actions such as his responses to Rodríguez-Severino's

requests for time off and not permitting Rodríguez-Severino to

return until he had the appropriate documentation; and (3) his

eventual transfer to OPEX where he alleged that he was no longer

able to grow as an EH&S professional.

As to Rodríguez-Severino's transfer to the third shift,

he cannot surmount the hurdle that we have already identified. He

was transferred to the third shift in June 2016, but we have

- 29 - already established supra that Cariño, the alleged retaliator, did

not know about Rodríguez-Severino's ombudsman complaint and was

unaware that Rodríguez-Severino had made any complaint against him

until November 2016 when the first EEOC charge was filed.

Therefore, the transfer to the third shift cannot constitute

retaliation for Rodríguez-Severino's complaint since Cariño was

not aware of it. See Delaney,

.

As to the other alleged adverse employment actions which

took place after the filing of the first EEOC charge, Cariño's

general treatment of Rodríguez-Severino and Rodríguez-Severino's

eventual transfer to OPEX, we agree with the district court that

they do not constitute adverse employment actions under our

jurisprudence. "The antiretaliation provision protects an

individual not from all retaliation, but from retaliation that

produces an injury or harm." Burlington N.,

; see

also Colón-Fontánez v. Municipality of San Juan,

(1st Cir. 2011) ("To establish an adverse employment action,

[plaintiff] must show []he suffered material harm."). Here,

Rodríguez-Severino has failed to establish the requisite material

harm needed for an adverse employment action. The adverse action

must carry with it "tangible consequences." See Bhatti v. Trs. of

Bos. Univ.,

(1st Cir. 2011). Rodríguez-Severino

did not establish any material harm or tangible consequences from

Cariño's alleged treatment of him or his transfer to OPEX. Indeed,

- 30 - his transfer to OPEX led to a new supervisor, as well as the

ability to work the first rather than the third shift. Rodríguez-

Severino claims, without tangible proof, that his transfer to OPEX

affected his ability to progress as an EH&S professional. This

allegation, without more, does not suffice to establish material

harm. See Colón-Fontánez,

("This conclusory

allegation [that lack of training would affect plaintiff's

progress as a professional] is not sufficient for purposes of

establishing a 'significant, not trivial, harm' that rises above

mere 'inconvenience.'" (quoting Carmona-Rivera v. Puerto Rico,

(1st Cir. 2006))).

Cariño's actions towards Rodríguez-Severino did not

carry tangible consequences. Rodríguez-Severino did not proffer

evidence that he had been disciplined or reprimanded by Cariño.

"Rather, each [action] was merely directed at correcting some

workplace behavior that management perceived as needing

correction." Bhatti,

. Based on UTC's uncontested

statement of material facts, many of Cariño's actions towards

Rodríguez-Severino were brought about by the latter's shortcomings

in his work and the need to correct them. Without said

consequences, Rodríguez-Severino's retaliation claim cannot

succeed as UTC's actions towards him cannot qualify as adverse

employment actions.

- 31 - The Supreme Court has cautioned that Title VII "does not

set forth 'a general civility code for the American workplace.'"

Burlington N.,

(quoting Oncale v. Sundowner Offshore

Servs., Inc.,

(1998)). Accordingly, Title VII

antiretaliation law does not protect an "employee from those petty

slights or minor annoyances that often take place at work and that

all employees experience."

Rodríguez-Severino did not bring

forth sufficient evidence at the summary judgment stage to

establish that he suffered any adverse employment action at the

hands of UTC. Therefore, we agree with the district court that he

is unable to make out a prima facie case for retaliation under

Title VII. Necessarily, then, his appeal must fail.

b. Puerto Rico Law 115 Claim

Rodríguez-Severino notes briefly -- in one sentence --

that the dismissal of his supplemental claims under Puerto Rico

Law 115 should be vacated and remanded for the same reasons and

analysis as his Title VII retaliation claims. Substantively, Title

VII antiretaliation law and the antiretaliation provisions under

Puerto Rico Law 115 largely overlap. Rivera-Rivera v. Medina &

Medina, Inc.,

(1st Cir. 2018). Given the symmetry

between the antiretaliation provisions under Title VII and Puerto

Rico Law 115, we affirm the dismissal of Rodríguez-Severino's

Puerto Rico antiretaliation law claims for much the same reasons

as we affirmed the dismissal of his Title VII claims. See Bonilla-

- 32 - Ramirez v. MVM, Inc.,

(1st Cir. 2018) ("[A]s

[appellant] makes no argument that [his] Puerto Rico law claims

survive if [his] Title VII claims do not, we affirm the District

Court's summary judgment ruling dismissing [appellant's] claims

[under] . . . Puerto Rico Law 115 . . . ."). Furthermore, even if

Rodríguez-Severino's Law 115 claim does survive the dismissal of

the Title VII retaliation claim, we consider it waived for lack of

any meaningful development, as Rodríguez-Severino does not address

said claim apart from one sentence at the conclusion of his brief.

See United States v. Zannino,

(1st Cir. 1990)

("[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").

III. Conclusion

The judgment of the district court is

AFFIRMED. Each party to bear its own costs.

- 33 -