Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-2157

ANA VIZCARRONDO-GONZÁLEZ,

Plaintiff, Appellant,

v.

THOMAS J. VILSACK, Secretary of Agriculture; UNITED STATES DEPARTMENT OF AGRICULTURE; ELIUD RIVERA,

Defendants, Appellees.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Thompson, Circuit Judges.

José G. Fagot Díaz, with whom Manuel E. López Fernández was on brief, for appellant.

Gregory Bennett Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division were on brief, for appellees Vilsack and United States Department of Agriculture.

Julio E. Gil de Lamadrid for appellee Rivera. June 28, 2024 HOWARD, Circuit Judge. Plaintiff-appellant Ana

Vizcarrondo-González ("Vizcarrondo") alleged she had been sexually

harassed by a co-worker, Eliud Rivera, and sued both Rivera and

her employer, Thomas J. Vilsack, the Secretary of Agriculture, and

the United States Department of Agriculture (collectively,

"USDA"). At the summary-judgment stage, only three claims

remained: a claim of a discriminatory hostile work environment and

a claim of retaliation, both against the USDA under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; and a

claim of assault and battery against Rivera under Article 1802 of

the Puerto Rico Civil Code, P.R. Laws tit. 31, § 5141. The

district court entered summary judgment on these claims in favor

of each of the defendants. Vizcarrondo appeals from that judgment,

largely copying and pasting in her appellate brief the arguments

she made before the district court.

Vizcarrondo has waived all her arguments that there was

error in the district court's entry of summary judgment on her

Title VII claims against the USDA. And with respect to the

district court's entry of summary judgment against her on her

assault and battery claim, Vizcarrondo has also waived any argument

resisting that conclusion. We affirm.

I.

A. Factual History

We refer to the district court's opinions for fuller

- 3 - discussions of the facts. Vizcarrondo-González v. Perdue

("Vizcarrondo I"), Civ. No. 16-2461,

, at *2–8

(D.P.R. Mar. 20, 2020); Vizcarrondo-González v. Perdue

("Vizcarrondo II"), Civ. No. 16-2461,

, at *1–2

(D.P.R. Oct. 26, 2020).

Vizcarrondo was a GS-7 Plant Protection and Quarantine

Officer with the Animal and Plant Health Inspection Service

("APHIS") of the USDA. This position is ranked higher than the

one held by Rivera, her co-worker, who was a GS-5 Plant Protection

and Quarantine Technician with the APHIS.

The APHIS has a written Anti-Harassment Policy Statement

and provides training to its employees on workplace harassment

prevention policies and procedures for making a complaint.

Vizcarrondo received a copy of the Policy Statement and underwent

the training. The Policy Statement provides: "[A]n employee making

a complaint of harassment based on a protected basis must contact

the APHIS Office of Civil Rights, Diversity and Inclusion (OCRDI)

Counseling and Resolution Branch . . . within 45 days of the

alleged incident." The OCRDI Counseling and Resolution Branch is

responsible for guiding and acting on Equal Employment Opportunity

("EEO") complaints.1

1 "[EEO] laws prohibit specific types of job discrimination in certain workplaces." Equal Employment Opportunity, U.S. Dep't of Labor, https://www.dol.gov/ general/topic/discrimination [https://perma.cc/JT4W-SWDE]. - 4 - 1. Vizcarrondo's 2014 Allegations Which Lead to the Discipline of Rivera in 2015 ("Pre- Suspension Conduct")

Vizcarrondo did not contact the APHIS's OCRDI Counseling

and Resolution Branch, at all, in 2014 to report her sexual

harassment claims. On May 24, 2014, Vizcarrondo instead complained

to her then-immediate supervisor, José Sánchez, alleging that

Rivera had sexually harassed her on various occasions, including

on the previous day. Vizcarrondo's allegations are as follows.

Vizcarrondo reported that, on May 23, 2014, Rivera

entered her office, stated, "Ave Maria, each time that I eat an

ice cream cone and lick it I think [of] Ana," and acted out licking

an ice cream cone (the "May 2014 ice cream incident"). Vizcarrondo

added that Rivera previously had stared at her while licking an

ice cream cone.2

2 Vizcarrondo's written statement of the incident specifically stated: On May 23, 2014 . . . [w]hile I was working, the Technician Eliud Rivera came and enters into the office and with aloud voice and close to my person told me, and I quote: "Ave Maria, each time that I eat an ice cream cone and lick it I think in Ana[].["] He told me this while he was doing the movement of licking an ice cream cone. Very disgusting to my person. . . . Should be mention that this is not the first time that this happen, nights back ago, while I was sitting in the desk, Mr. Eliud Rivera stand in front of the glass window which is located in front of the desk at the Terminal D in the Pre Departure office and Mr. - 5 - Vizcarrondo supplemented her Statement on May 27, 2014

("the Addendum"). Vizcarrondo stated in the Addendum:

On April 23, 2014 during the night shift, I was assigned to the Terminal A at the Jet Blue USDA Booth. When we were working there, we saw Mr. Eliud Rivera walking through the hall and walking straight to open the door of our Cashier Office . . . . [H]e didn't open it. He didn't because Mrs. Heidi Garmos was expressing her breast milk for her baby breastfeeding inside that room at that time and she had the door locked. . . . When Mr. Eliud Rivera . . . ask to us . . . about why he cannot open that door?? We explained to him and told him, well... "You can't open that door because Mrs. Heidi Garmos is taking out her breast milk [i]n that office[].["] Immediately, after he heard that he told to us: "Why not? If I want to see[]!!!!!["]

Vizcarrondo later, in June 2014, gave a statement under

oath in which she added that about a month before she filed her

complaint, Rivera showed her "a picture of a young female that he

had on his cell phone" and asked Vizcarrondo if she had "ever been

with a young male." Vizcarrondo stated that she "did not

appreciate his comments" and that she "find[s] it very

uncomfortable to be around [Rivera]."

Vizcarrondo did not report these events to an EEO

Rivera did the same thing, he stand in front of me and with a chocolate ice cream on his hand, he lick his ice cream cone looking me forward through the glass window.

- 6 - Counselor or anyone in the APHIS's OCRDI Counseling and Resolution

Branch within forty-five days of them occurring.

2. USDA's Response and Related Proceedings

Vizcarrondo testified in her deposition that Sánchez

appeared surprised and worried by her allegations and that he

promised to "take pertinent action."

On May 27, 2014, Sánchez emailed the Port Director, Norma

Rosario, about the allegations, asking for advice on how to

proceed. He also discussed the allegations with Eunice Everett

from the APHIS's Human Resources Division. Everett informed

Sánchez that he would need to investigate the allegations, tell

Rivera about the allegations, and, if necessary, separate

Vizcarrondo and Rivera at work.

Later that day, Sánchez notified Rivera of the sexual-

harassment allegations against him and that the allegations would

be investigated. Sánchez warned Rivera that he must refrain from

inappropriate behavior. Sánchez also contacted the employee that

Vizcarrondo said witnessed the May 2014 ice cream incident.

The next day, May 28, 2014, Sánchez filed a request for

a misconduct investigation with the Administrative Investigations

and Compliance Branch ("AICB") of the APHIS. Also on that day,

Rosario prepared a letter addressed to Rivera, stating:

[D]ue to serious allegations that have surfaced, you are being placed on paid excused

- 7 - absence until further notice. Until these allegations have been thoroughly investigated, you are not to report to your duty location or to perform any official duties unless instructed to do so by your supervisor. You will remain in this status until you are officially informed otherwise. . . . You are hereby directed not to access any USDA building unless you have your supervisor's authorization and by appointment only. You are directed not to access official voice mail, computers and/or computer systems, Outlook, employee websites, SharePoint sites, equipment, etc., during your absence. You are further instructed not to contact any employees of the Agency, except your supervisor, with regard to any work matters unless specifically authorized to do so in this letter . . . .

(emphasis added). Rivera acknowledged receipt of the letter on

May 30, 2014, and he surrendered his USDA badge, keys, and other

items that same day.

The AICB assigned Personnel Misconduct Investigator

Anthony A. Gabaldon to investigate Vizcarrondo's sexual-harassment

allegations. Gabaldon conducted telephonic interviews to take

statements under oath from Rivera, Vizcarrondo, and named

witnesses. Before each interview, Gabaldon identified himself as

a Personnel Misconduct Investigator for the AICB. Gabaldon did

not at any time during the investigation state that he was an EEO

investigator or that he was conducting an EEO investigation.

Gabaldon issued his "Report of Investigation" as to

Rivera on July 31, 2014. The Report disclosed Gabaldon's factual

- 8 - findings and the supporting documentation. It did not opine on

what remedial actions were appropriate, if any.

Although Rivera was almost immediately placed on

mandatory paid leave in May 2014, it was temporary pending the

investigation. On September 8, 2014, Rosario notified Rivera that

his temporary leave was to be lifted, although the APHIS had yet

to determine the appropriate discipline and still viewed

Vizcarrondo's allegations as "very serious." Rivera was

instructed to report to work the following day and to "only have

work related contact with Ms. Ana Vizcarrondo, and only when it is

absolutely necessary. [He was to] avoid her as much as possible."

Rosario also notified Vizcarrondo of Rivera's return to

work and told Vizcarrondo to report Rivera to management if he

contacted her unnecessarily.

On October 1, 2014, Vizcarrondo emailed Investigator

Gabaldon (who was not management), requesting a status update on

the investigation and informing Gabaldon of her concerns that

Rivera was permitted to be near her at the workplace. Gabaldon

forwarded the email to Everett, who forwarded it to Rosario.

Rosario responded to Everett that, contrary to the above

instructions, Vizcarrondo had not communicated her concerns to any

of her supervisors. Rosario added that she personally was unaware

of any new incident between Vizcarrondo and Rivera and that she

was still "waiting on recommendation of the Disciplinary Action

- 9 - against [Rivera]."

On October 24, 2014, Vizcarrondo demanded via email an

appointment with Rosario "because the orders of this memorandum

have been violated by the other party [(Rivera)]." Rosario

responded the same day, stating: "I will be in my office on Monday

at 0800 AM. Please confirm the time you will like to meet with

me. We ned [sic] to give prompt attention to this matter." The

record does not show that Vizcarrondo ever replied to Rosario or

made any further effort to meet with Rosario to address her

concerns. For the rest of 2014, Vizcarrondo did not make any

additional reports about Rivera.

On January 2, 2015, Rosario handed Rivera a "Notice of

Proposed Suspension of Five (5) Calendar Days" as a disciplinary

measure for engaging in "[c]onduct [u]nbecoming a Federal

[e]mployee." The disciplinary measure was finalized on May 11,

2015, and Rivera served his suspension from June 1 to June 5, 2015.

Vizcarrondo admits that since October 2014 (pre-

suspension), Rivera has not addressed her directly about anything

outside of work, nor has he offered her ice cream, discussed women

who are breast feeding, or asked her about "being with younger

people." On July 31, 2015 (post-suspension), Vizcarrondo's

attorneys filed a letter with the APHIS's State Plan Health

Director, stating in a conclusory manner that Rivera "attempts to

be near Vizcarrondo to intimidate her with a cavalier attitude

- 10 - that he can continue with his unlawful conduct and will not be

disciplined." The letter provides no specific allegations and

fails to acknowledge the disciplinary action that recently had

been taken against Rivera.3

Several months later, on December 7, 2015, Vizcarrondo

initiated for the first time informal EEO counseling, alleging she

was sexually harassed by Rivera in May 2014.4 Her claims were not

resolved through the informal procedures. Vizcarrondo received a

Notice of Right to File a formal EEO complaint on February 17,

2016, and she filed such a complaint on March 2, 2016. She alleged

gender discrimination, sexual harassment, and retaliation.

Specifically, she claimed that on May 24, 2014, "she was sexually

harassed by a colleague, and . . . management failed to properly

address the incident by retaining the alleged harasser as an

employee."

On May 6, 2016, the USDA Office of Adjudication issued

3 We do not address the post-suspension allegations that Vizcarrondo failed to report to her employer, i.e., that once Rivera returned to work, he would whistle, sing, and stare at her. See Fontánez-Núñez v. Janssen Ortho LLC,

(1st Cir. 2006) (affirming district court's grant of summary judgment on hostile work environment claim covering 1997 to 2001, inter alia, because plaintiff complained to supervisor only in 1997, which did not notify employer about the alleged harassment thereafter). 4 Vizcarrondo denies that she had failed to commence EEO proceedings prior to this date, citing the July 31, 2015 letter from her attorneys which stated that "[o]n May 24, 2014, Vizcarrondo filed her internal EEO grievance involving this matter with her night supervisor." - 11 - its Final Agency Decision, dismissing Vizcarrondo's EEO complaint

in its entirety for untimeliness and failure to state a claim.

3. The Jacket Incident

On February 19, 2016, after Vizcarrondo already received

the Notice of Right to File, she sent an email to EEO Specialist

Lauren Hill ("Hill") alleging that one month earlier, Rivera had

grabbed a jacket off the back of the chair on which Vizcarrondo

was sitting and brushed her "buttocks, [her] low back and back" in

the process (the "jacket incident"). Hill responded that

Vizcarrondo's supervisor should address the incident, as Hill

already had "closed [Vizcarrondo's] informal EEO complaint and

issued [her] Notice of Right to File." This jacket incident was

not mentioned by the agency in its Final Agency Decision.

The jacket incident allegation was forwarded to

Vizcarrondo's then-supervisor, José Jiménez. Jiménez contacted

Rivera and two witnesses in February 2016 about the incident and

requested written statements from them; none of the individuals

could corroborate Vizcarrondo's account of the event.

Vizcarrondo herself has given inconsistent accounts. At

certain times, Vizcarrondo stated that "[t]he mentioned jacket

brushed my buttocks, my lower back and my back." She later stated

that it was Rivera's hand, not the jacket, that touched her.

B. Procedural History

Vizcarrondo filed her complaint against the USDA and

- 12 - Rivera in the District of Puerto Rico on August 8, 2016. She

brought many claims under federal and Puerto Rico law. The claims

that remained at the summary-judgment stage were: discriminatory

and retaliatory hostile work environment claims against the USDA

under Title VII, 42 U.S.C. §§ 2000e, et seq., and an assault and

battery tort claim against Rivera as to the jacket incident under

Article 1802 of Puerto Rico's Civil Code.5

The defendants moved for summary judgment as to those

three claims in the spring of 2018. The district court addressed

the Title VII and Article 1802 claims in two separate opinions and

ultimately ruled in the defendants' favor in toto.

First, on March 20, 2020, the district court granted

summary judgment in favor of the USDA as to Vizcarrondo's Title

VII claims. Vizcarrondo I,

, at *1. The court

held:

Plaintiff's [discriminatory] hostile work environment action fails at various levels: non-exhaustion; prompt and adequate employer response to the incidents plaintiff complained about in May 2014; employer's lack of knowledge -- actual or constructive -- about incidents that plaintiff attributes to Rivera after he was reinstated in September 2014; and ultimately, accepting that those later incidents occurred, they do not rise to the level of severity or pervasiveness that the law requires for a showing of a hostile work

5 The district court previously dismissed all Puerto Rico law and federal constitutional law claims against the USDA and all claims against Rivera save the Article 1802 claim. Those dismissed claims are not at issue. - 13 - environment.

Id. at *27. Because the court determined that Rivera's post-

suspension conduct was insufficiently severe to create a hostile

work environment, it also held that Vizcarrondo failed to establish

a retaliatory hostile work environment claim against the USDA based

on that conduct. Id. at *24.

The court ordered further briefing on the Article 1802

claim against Rivera. Id. at *27-28. On April 16, 2020, the

government filed with the district court a Scope of Employment

Certification for the January 14, 2016, jacket incident. The

certification stated: "Eliud Rivera[] was acting within the scope

of his federal employment . . . at the time of the jacket removal

incident which gave rise to the asserted tort claim." Vizcarrondo

challenged the certification.

There was an evidentiary hearing on the certification on

October 8, 2020, after which the district court issued an opinion

and order granting summary judgment on the Article 1802 claim in

favor of Rivera. Vizcarrondo II,

, at *1. The

court held that, under Puerto Rico law, Rivera was acting within

the scope of his employment at the time he grabbed the jacket off

of Vizcarrondo's chair, so pursuant to the Westfall Act and the

Federal Tort Claims Act,

, 2671–80 ("FTCA"), the

United States would be substituted as the defendant.

at *2-

4. The court further stated: "[G]iven that Ms. Vizcarrondo

- 14 - complains of assault and battery, the Government has not consented

to be sued for intentional torts except in limited instances not

present here, and Ms. Vizcarrondo failed to exhaust administrative

remedies under the [FTCA], the tort claim must be dismissed." Id.

at *1.

II.

Our review of a district court's grant of summary

judgment is de novo. Frederique-Alexandre v. Dep't of Nat. & Env't

Res.,

(1st Cir. 2007). So, too, is our review

of a district court's conclusions regarding an employee's scope of

employment. McIntyre ex rel. Est. of McIntyre v. United States,

(1st Cir. 2008). We review the district court's

underlying factual findings for clear error.

A. Vizcarrondo's Arguments as to Her Title VII Claims Against the USDA Fail on Several Appellate Waiver Grounds

Title VII protects against discriminatory employment

practices, including "sex-based discrimination that creates a

hostile or abusive work environment." Vera v. McHugh,

(1st Cir. 2010) (quoting Billings v. Town of Grafton,

(1st Cir. 2008)). A hostile work environment is one

"permeated with discriminatory intimidation, ridicule, and insult,

that is sufficiently severe or pervasive to alter the conditions

of the victim's employment." Harris v. Forklift Sys. Inc.,

(1993) (internal quotations and citations omitted).

- 15 - A plaintiff's discriminatory hostile work environment

claim will not succeed unless she first exhausts her administrative

remedies, see Rodriguez v. United States,

(1st

Cir. 2017), and also establishes:

(1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

Roy v. Correct Care Sols., LLC,

(1st Cir. 2019)

(quoting O'Rourke v. City of Providence,

(1st

Cir. 2001)). The last factor requires evidence that the employer

either created or tolerated the hostile atmosphere. Wilson v.

Moulison N. Corp.,

(1st Cir. 2011). When the alleged

harasser is the plaintiff's co-worker rather than supervisor, "the

plaintiff must demonstrate that the employer knew or should have

known about the harassment yet failed to take prompt and

appropriate remedial action."

To establish a Title VII retaliation claim, a plaintiff

must demonstrate: (1) she engaged in protected conduct; (2) "her

employer took a material adverse action against her"; and (3) the

adverse action is causally related to her protected conduct.

- 16 - Medina-Rivera v. MVM, Inc.,

(1st Cir. 2013). A

hostile work environment, "if sufficiently severe or pervasive,

may in and of itself constitute an adverse employment action

sufficient to satisfy the second prong of the prima facie case for

Title VII retaliation cases." Noviello v. City of Bos.,

(1st Cir. 2005).

Vizcarrondo's appellate brief on these issues

essentially is a copy and paste of what was in her district court

brief, rendering her arguments waived for two reasons: (1) they

are raised in a perfunctory and undeveloped manner, and (2) there

is nothing in the opening brief providing any reasoning on the

contention that the district court erred in entering summary

judgment in favor of the USDA.6 It is well-settled that we will

deem arguments that are raised in a perfunctory or undeveloped

manner to be waived. See Rodríguez v. Mun. of San Juan,

(1st Cir. 2011); United States v. Zannino,

(1st Cir. 1990); see also Conboy v. U.S. Small Bus. Admin.,

(3d Cir. 2021) ("Counsel for [appellants] simply

took the summary judgment section of his District Court brief and

copied and pasted it into his appellate brief, with minor changes

such as swapping 'Defendant' for 'Appellee.' . . . This is not

6 Although the USDA makes this waiver argument in its opposition brief, Vizcarrondo did not file a reply brief to respond to the argument. - 17 - proper appellate advocacy." (internal citation omitted)); United

States v. Coleman,

, 356 & n.3 (5th Cir. 2015)

(argument copied and pasted from briefs filed in other cases was

waived, given it was "conclusory, nonspecific and unpersuasive").

We will also find waiver if a party fails to address in

its opening brief a basis on which the district court ruled against

that party. See Cioffi v. Gilbert Enters., Inc.,

, 93–

94 (1st Cir. 2014) (litigant must explain "why a particular order

is erroneous"); Watson v. Ordonez, No. 18-1688,

,

at *1 (1st Cir. May 1, 2020) ("The district court dismissed the

action . . . . Appellant fails to develop any relevant argument

showing that the district court erred in doing so, and he thereby

waives the issue."); Elite Sportswear Prods., Inc. v. N.Y. Life

Ins. Co.,

(3d Cir. 2008) ("[Appellant's]

failure to challenge the District Court's conclusions with respect

to the timeliness of its tort claims and the adequacy of its

contract claims in its opening brief constitutes a waiver of these

issues on appeal."). This is because "[j]udges are not mind-

readers, so parties must spell out their issues clearly,

highlighting the relevant facts and analyzing on-point authority."

Rodríguez,

.

- 18 - 1. Discriminatory Hostile Work Environment Claim Based on Rivera's Pre-Suspension Conduct7

We need not address whether Vizcarrondo exhausted her

administrative remedies as to Rivera's pre-suspension conduct

(although we highly doubt she has)8 because she has waived any

7 Vizcarrondo has waived the argument that her claims as to Rivera's pre-suspension conduct (e.g., the May 2014 ice cream incident) and his post-suspension conduct (e.g., Rivera's attempt to intimidate with his cavalier attitude and the jacket incident) should constitute one unlawful employment practice. Other than conclusory, unsupported statements, Vizcarrondo does not challenge the district court's conclusions that "the [initial] conduct she complained of ceased after she reported it to Sánchez on May 24, 2014," and that the USDA investigated and disciplined Rivera for that conduct. Vizcarrondo I,

, at *12. She develops no argument as to why the district court erred in ruling that "the agency's intervening action [against Rivera] placed the pre-jacket conduct outside of the realm of the hostile work environment claim arising out of the jacket incident."

We will therefore review Vizcarrondo's pre-suspension claims separately from her post-suspension claims. 8 Vizcarrondo complained to her supervisor in May 2014 that Rivera was sexually harassing her. Despite receiving training and documentation on how to initiate EEO proceedings, she did not contact an EEO counselor or any personnel in APHIS's OCRDI Counseling and Resolution Branch about these claims until December 2015 -- well beyond the forty-five days she had to initiate the EEO process. Vizcarrondo nonetheless argued to the district court that the EEO process began when she informed Sánchez and Gabaldon of Rivera's conduct. The district court rejected her argument, observing that "alternate grievance processes do not replace the EEO process," Vizcarrondo I,

, at *11, and neither Sánchez nor Gabaldon was an "agency official[...] logically connected with the EEO process," id. at *10 (alteration in original). Vizcarrondo does not rebut this reasoning on appeal but instead repeats verbatim the arguments from her district court brief. Nor does Vizcarrondo develop any argument as to why the district court erred in concluding, alternatively, that Vizcarrondo's email to Hill in 2016 about the jacket incident failed to exhaust her administrative remedies under the continuing-violation theory because the USDA's discipline of Rivera severed her pre-suspension conduct claims from the jacket - 19 - argument that the USDA's discipline of Rivera failed to absolve

the agency of liability. The district court found that

Vizcarrondo's supervisors promptly and appropriately responded to

her allegations:

Within days of her complaint to Sánchez, management warned Rivera to refrain from inappropriate conduct; placed him on a forced leave of absence; and began an investigation. Rivera returned to work three months later, on September 9, 2014: (1) pending a final agency decision; and (2) on the condition that he have no contact with plaintiff unless "absolutely necessary[.]" Subsequently, the USDA suspended Rivera without pay for five days in accordance with its Guide for Disciplinary Penalties, informing him that: (1) his conduct was considered a "serious infraction;" (2) the suspension served to "correct [his] behavior;" and (3) future misconduct could lead to further disciplinary action "up to and including removal[.]" In context, the USDA promptly investigated plaintiff's allegations and took adequate remedial measures reasonably aimed at preventing any harassment.

Vizcarrondo I,

, at *15 (second alteration in

original) (internal citations omitted). Such remedial measures,

per the district court, "foreclose liability."

Vizcarrondo

develops no argument on appeal as to why the district court was

incident. See Morales-Tañon v. P.R. Elec. Power Auth.,

(1st Cir. 2008) ("[P]laintiff does not provide any legal argument or case citations on appeal as to why the district court was wrong[, and we] 'have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.'" (quoting United States v. Bongiorno,

(1st Cir. 1997))). - 20 - wrong.

Vizcarrondo states only that, "despite the fact that

Rivera was suspended without pay for 5 days following his sexual

harassment behavior against Vizcarrondo . . . subsequently to his

suspension and after returning back to work, Rivera continued

seeking contact with Vizcarrondo[.]" (emphasis added). This

misses the point. "An employer's disciplinary decision must be

evaluated in real time; it cannot be evaluated in hindsight."

Wilson,

. And Vizcarrondo has not argued on appeal

that, based on the information the agency had when the suspension

was imposed, the USDA's disciplinary action was unreasonable.

2. Rivera's Post-Suspension Conduct

Vizcarrondo has also waived the argument that her

allegations against the USDA arising out of Rivera's post-

suspension conduct should have survived summary judgment. On

appeal, she does not argue against the district court's

determination that such conduct was insufficiently severe to

trigger Title VII liability.9 See Vizcarrondo I,

,

at *20.

The district court held that Rivera's alleged attempt to

9 For this reason, we need not determine whether Vizcarrondo's email to Hill initiated the EEO process for exhaustion of administrative remedies purposes. Indeed, Vizcarrondo has likely waived any objection to the district court's conclusion that she failed to exhaust as to this later conduct. - 21 - intimidate Vizcarrondo by being near her with a cavalier attitude

did not create an "objectively hostile or abusive, severe or

pervasive" environment. Id. at *17. The court further held that

"[t]he jacket incident was isolated and mild in the context in

which it took place" and likewise was too insubstantial to create

a hostile work environment. Id. at *20. On appeal, Vizcarrondo

fails to engage with these rulings. Her appellate brief instead

repeats the argument she made in the district court. Cf. Conto v.

Concord Hosp., Inc.,

(1st Cir. 2001) (rejecting

appellant's fact-based appellate argument where appellate brief

fails to cite to any relevant material record facts, instead

"generally invit[ing the court's] attention to all the documents

submitted in evidence"). By not engaging with the specific grounds

on which district court rejected her post-suspension

discriminatory hostile work environment claim against the USDA,

Vizcarrondo's appeal of this issue must fail.

3. Retaliation

Vizcarrondo's arguments as to her retaliation claim also

fail on waiver grounds. Here, in rejecting Vizcarrondo's

retaliatory hostile work environment claim, the district court

observed that Vizcarrondo engaged in protected activity by

complaining of sexual harassment to her immediate supervisor but

held that she proffered no materially adverse employment action

and failed to establish causation between her protected conduct

- 22 - and the adverse actions she alleged. Vizcarrondo I,

, at *24–25. It reiterated that Rivera's cavalier attitude

and the jacket incident were too insubstantial to create a hostile

work environment and observed that there was no causation as to

any other of Rivera's post-suspension conduct of which the employer

was unaware. Id. at *25.

Vizcarrondo yet again fails to develop any argument that

addresses the district court's ruling.10 As to the adverse

employment action, Vizcarrondo merely states that "Rivera

continued to seek to be in her presence creating a hostile and

intimidating working environment" and "assaulted her by touching

her buttocks." She again does not engage with the district court's

substantiality ruling. And for causation, Vizcarrondo generally

states that "a causal connection existed between the protected

conduct and the adverse action" by the USDA. This is not enough.

Vizcarrondo does not explain why the district court's conclusions

were wrong, nor does she "spell out [the] issues clearly [by]

highlighting the relevant facts and analyzing on-point authority."

Rodríguez,

; see also Best Auto Repair Shop, Inc.

10 These deficiencies are no doubt a product of her decision to submit a brief to our court that is almost entirely copy and pasted from her district court brief. As a result, her argument is unmoored from the district court's holding. For example, her appellate brief argues that the district court should not resolve questions of pretext and motive on summary judgment. But the district court assumed Rivera had a retaliatory motive. Vizcarrondo I,

, at *24.

- 23 - v. Univ. Ins. Grp.,

, 736–37 (1st Cir. 2017).

B. Vizcarrondo's Remaining Tort Claim Against Rivera Also Fails on Waiver Grounds

The district court held that Vizcarrondo's remaining

claim against Rivera -- assault and battery under Article 1802 --

is barred by sovereign immunity. Vizcarrondo II,

,

at *10. Once again, Vizcarrondo has failed to develop any

arguments in response to that ruling.

The record shows the following. Both Vizcarrondo and

Rivera reported to work at the Luis Muñoz Marín International

Airport the morning of January 14, 2016. Vizcarrondo was sitting

on a chair in the Main Inspection Room when Rivera entered, having

just completed an overtime shift and needing to discard contraband

in the designated trashcan. The Main Inspection Area was the only

location where the contraband could be discarded. Rivera disposed

of the contraband, greeted two co-workers, walked toward the chair

on which Vizcarrondo was sitting, grabbed his government-issued

jacket off of the back of that chair, continued walking to another

table, picked up a thermos, verified the daily guide log to confirm

where he was to report, and left for his next post.11 The APHIS

permits its employees to wear official government jackets as part

of their uniform. Employee regulations specify that employees

11 Vizcarrondo alleges that Rivera grabbed the jacket "abruptly" and "like a madman" without asking Vizcarrondo for permission. This frightened her. - 24 - must keep all equipment and uniforms with them as they report to

their stations.

Vizcarrondo alleges that, when grabbing his jacket off

of her chair, Rivera brushed her "back and buttocks." This, she

alleges, constitutes assault under Puerto Rico tort law. On

appeal, the issue is whether Rivera personally can be held liable

for this alleged assault, which turns on whether he was acting

within the scope of his federal employment at the time. The

district court held that Rivera was acting within the scope of his

employment. It concluded that, when Rivera grabbed his jacket,

his conduct was related to his employment, took place at work

during work hours, and "advanced the employer's interests, for the

agency's mission is furthered when its employees report to work on

time, review the daily log to make sure they know where they are

assigned to work, discard contraband in the assigned containers,

and are appropriately dressed and duly uniformed in the workplace."

Id. at *3 (internal citations omitted).

As was the case here, "[u]nder the Westfall Act, the

Attorney General [or his delegate] can certify that a federal

employee named as a defendant in a civil case was 'acting within

the scope of his office or employment at the time of the incident'

that serves as the basis for a tort claim against that employee."

Lyons v. Brown,

, 607 n.1 (1st Cir. 1998) (quoting

(d)(1)). When such a certification is made, "the

- 25 - court dismisses the federal employee from the case, and

[provisionally] substitutes the United States as defendant."

Davric Me. Corp. v. U.S. Postal Serv.,

(1st Cir.

2001). If the plaintiff objects to the certification, she then

has the burden to establish that the defendant was acting outside

the scope of his employment and should be re-named as the proper

defendant. See

. "State law controls the determination

of whether a federal employee was acting within the scope of

employment."

The parties agree that Puerto Rico law applies here.

Under Puerto Rico law, courts making a scope of employment

determination consider: (1) whether the employee's action showed

a desire to "serve, benefit, or further his employer's . . .

interest[;]" (2) whether he was prompted purely by personal

motives; and (3) whether his action was reasonably related to the

scope of his employment. Borrego v. United States,

(1st Cir. 1986) (quoting Rodriguez v. United States,

(D.P.R. 1971)); Vernet v. Serrano-Torres,

(1st Cir. 2009).

Because we conclude for the reasons below that

Vizcarrondo has failed to sufficiently develop, and has thereby

waived, arguments demonstrating error in the district court's

scope-of-employment ruling, we do not reach the merits of whether,

as a matter of Puerto Rico law, Rivera was acting within the scope

- 26 - of his employment when he grabbed his official government jacket

off of the back of the chair on which Vizcarrondo was sitting.

Vizcarrondo's first argument as to the scope-of-

employment question faces many of the same waiver issues that

plague her Title VII claims. In front of the district court, she

argued that Rivera's acts were outside the scope of his employment

because they were not in his job description. In its opinion, the

district court explained at length why the contents of Rivera's

job description were not dispositive. Vizcarrondo II,

, at *2–4. Instead of grappling with the district court's

holding and explaining why it was in error in her brief to our

court, Vizcarrondo instead repeats verbatim the same argument she

made to the district court -- committing a tort was not within the

scope of Rivera's employment because it was not in his job

description.

The district court based its decision on the overall

context of the encounter -- Rivera was between shifts, moving

between work areas, reviewing his work log, and retrieving his

work uniform.

at 3–4. Perhaps there is a successful argument

to be made that the district court was wrong in this determination,

but Vizcarrondo does not articulate one.

Vizcarrondo next contends that, even if as an objective

matter Rivera's conduct had the requisite link to the scope of his

duties and APHIS's interests, the conduct was outside the scope of

- 27 - employment because, subjectively, Rivera engaged in the conduct

for a wholly personal reason. Yet on appeal Vizcarrondo fails to

cite or analyze any authority applying Puerto Rico law that

suggests that such a subjective inquiry is decisive in such a

circumstance. As a result, any argument that the district court

erred in rejecting this contention is waived for lack of

development. See Rodríguez,

; Galvin v. U.S. Bank,

N.A.,

(1st Cir. 2017) (deeming waived an argument

for which the appellants did not cite relevant or supportive

authority).12

Affirmed.

12 Vizcarrondo also advances the following arguments: First, the USDA, in its request for the issuance of a scope of employment certification, erred by not evaluating the appropriate factors; second, the trial court erred by not allowing her to present evidence during an evidentiary hearing that Rivera's actions during the jacket incident were motivated purely by personal reasons. By presenting no developed explanation as to either issue, Vizcarrondo has waived these arguments. See Zannino,

.

- 28 -