          United States Court of Appeals
                      For the First Circuit


Nos. 15-1259
     15-1404

                     CARLOS ESCRIBANO-REYES,

                      Plaintiff, Appellant,

                                v.

               PROFESSIONAL HEPA CERTIFICATE CORP.,

                       Defendant, Appellee.


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

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                              Before

                       Howard, Chief Judge,
               Torruella and Lynch, Circuit Judges.


     Aníbal Escanellas-Rivera, with whom Escanellas & Juan, P.S.C.
was on brief, for appellant.
     José L. Nieto-Mingo, with whom Ricardo Pizarro García and
Pizarro García Law Offices, LLC were on brief, for appellee.


                          March 30, 2016
          LYNCH,   Circuit   Judge.       Carlos   Escribano-Reyes's

("Escribano") discrimination and retaliation suit against his

employer, Professional HEPA Certificate Corp. ("HEPA"), ended in

summary judgment for HEPA and a sanction order against Escribano's

counsel for filing a "sham affidavit" after he received repeated

warnings in earlier cases not to do so.

          As to the summary judgment order, Escribano first argues

that the district court erred in striking, under the sham affidavit

doctrine, a post-discovery sworn statement that Escribano had

submitted in his opposition to HEPA's motion for summary judgment.

Second, he argues that the district court erred in granting summary

judgment to HEPA on the basis that he did not meet his burden of

showing that HEPA had enough employees to qualify as a covered

employer under either the Americans with Disabilities Act ("ADA"),

42 U.S.C. §§ 12101–12213, or the Age Discrimination in Employment

Act ("ADEA"), 29 U.S.C. §§ 621–634.   Even though the nature of the

evidence he provided -- a list of names of twenty-seven individuals

who he believed were employees of HEPA -- was competent, we agree

with the district court that it was insufficient to meet his burden

on summary judgment, where the defendant had submitted official

documents filed with the Puerto Rico Department of Labor showing

that it did not employ enough people to trigger the ADA or the

ADEA.




                              - 2 -
           Finally,   Escribano   challenges      the   district   court's

imposition of $1000 in sanctions against Escribano's attorney,

Aníbal Escanellas-Rivera, for submitting the stricken affidavit.

Finding no error, we affirm.

                                   I.

           On September 9, 2013, Escribano brought suit in the

United States District Court in Puerto Rico against his employer,

HEPA.     His   amended   complaint     alleged   "illegal   harassment,

discrimination and retaliation, due to [his] disability, requests

for a reasonable accommodation, age, and for his opposition against

[HEPA's] unlawful employment practices," in violation of the ADA

and the ADEA.   He also alleged violations of Puerto Rico law.

           On June 24, 2014, about one month after the conclusion

of discovery -- on the last day of which Escribano's deposition

had been taken -- HEPA filed a motion for summary judgment.          HEPA

argued that it did not employ the minimum number of employees

necessary to qualify as an "employer" under either the ADA or the

ADEA.   See 42 U.S.C. § 12111(5)(A) ("employer" for purposes of ADA

requires "15 or more employees"); 29 U.S.C. § 630(b) ("employer"

for purposes of ADEA requires "twenty or more employees").             In

support, HEPA submitted "Quarterly Report[s] of Wages Paid to Each

Employee" for the years 2012 and 2013 that had been filed with the

Puerto Rico Department of Labor and Human Resources, as well as

"Informative Return Statements" for the years 2012 and 2013, to


                                  - 3 -
show that HEPA had fewer than fifteen employees between 2012 and

2013.

             Escribano filed a memorandum in opposition to HEPA's

motion for summary judgment on August 13, 2014.                     He argued that

HEPA had twenty-seven employees during the years 2011, 2012, 2013,

and 2014.     To support his argument, Escribano submitted: (1) a

handwritten list prepared by Escribano, which had been produced in

discovery,    that       listed    the   names    of   twenty-seven     people     who

Escribano    believed       were    employees     of   HEPA,   and    (2)   a   sworn

statement dated August 12, 2014, in which he stated that "[he]

[was] fully aware of the fact that the defendant had 27 employees

during the years in which the adverse employment actions were taken

against [him], since [he] worked on a daily basis, along with the

employees that appear in the list."

             HEPA    filed     a    reply   to     Escribano's       memorandum     on

September    3,     2014,    arguing     that    Escribano's   allegations        with

regard to the number of HEPA employees were insufficient to defeat

a motion for summary judgment and requesting that the district

court strike Escribano's sworn statement in its entirety.                         HEPA

stated that Escribano's "sworn statement consists of several new

allegations never before mentioned, testimony that contradicts

[Escribano's] testimony during his deposition, that is based on

hearsay and/or that constitute a conclusory allegation and/or a

reinstatement       of      [Escribano's]       allegations    of     the   Amended


                                         - 4 -
Complaint unsupported by a single piece of evidence or reference

to the record." In short, HEPA alleged that Escribano, "confronted

with the fact that there is no evidence to support his allegations,

prepared a custom-made, self-serving statement . . . to face the

ambiguities and gaps of his factual and legal theories."

          The district court granted HEPA's motion for summary

judgment and its motion to strike Escribano's sworn statement on

January 23, 2015.      Reyes v. Prof'l HEPA Certificate Corp., 74 F.

Supp. 3d 489 (D.P.R. 2015).      Invoking the sham affidavit doctrine

and our opinion in Morales v. A.C. Orssleff's EFTF, 246 F.3d 32,

35 (1st Cir. 2001), the district court explained that unless a

party can provide a "satisfactory explanation" for doing so,

"[f]ollowing discovery, a party may not use a later affidavit to

contradict facts previously provided to survive summary judgment."

Reyes, 74 F. Supp. 3d at 491. The court then noted that Escribano's

sworn statement -- signed after HEPA's motion for summary judgment

and just one day before Escribano's opposition was filed --

"provides no explanation as to its tardiness, inconsistencies with

previous facts and new factual contentions."         Id.   Lamenting that

"this [was] not the first time this court face[d] a sham affidavit

issue with [Escribano's] counsel," id. at 492, the district court

struck   Escribano's     sworn   statement,   held    that    Escribano's

pleadings supported by the stricken evidence would be deemed

unsupported, and granted HEPA's motion for summary judgment with


                                  - 5 -
regard to Escribano's ADA and ADEA claims, id. at 493, 495–96.

The court also declined to exercise supplemental jurisdiction over

Escribano's state law claims and dismissed them without prejudice.

Id. at 496; see 28 U.S.C. § 1367(c)(3).

             In a separate order dated January 23, 2015, the district

court ordered the parties to "show cause as to why [Escribano] or

his counsel should or should not be sanctioned pursuant to Fed. R.

Civ. P. 11(b) and 28 U.S.C. § 1927."         Both parties filed motions

in compliance with the order on February 6, 2015.           Escribano also

filed a notice of appeal from the judgment that same day.

             On February 18, 2015, the district court issued an

opinion and order imposing on Escribano's counsel, Escanellas-

Rivera, a $500 sanction for violation of Rule 11(b) of the Federal

Rules of Civil Procedure and a $500 sanction for violations of 28

U.S.C. § 1927. Reyes v. Prof'l HEPA Certificate Corp., 86 F. Supp.

3d   79,   82–83   (D.P.R.   2015).   In   imposing   the    sanction   for

violations of 28 U.S.C. § 1927, the district court judge noted

that "[c]ounsel's behavior is not an isolated event" and that he

and other judges in the District of Puerto Rico had previously

admonished    Attorney   Escanellas-Rivera    for   filing    post-summary

judgment affidavits.1        Id. at 83.    Escribano filed an amended


      1   The district court cited the following cases as examples
of Attorney Escanellas-Rivera's history of filing post-discovery
affidavits: Levine-Diaz v. Humana Health Care, 990 F. Supp. 2d
133, 140 (D.P.R. 2014) (disregarding portions of affidavit where


                                  - 6 -
notice of appeal on February 24, 2015, to include an appeal of the

district court's order on sanctions.




"it was either incongruent with [the plaintiff's] deposition
testimony or the matter in question was the subject of extensive
questioning during deposition, yet she decided to elaborate
further in her affidavit"); Rodriguez-Fonseca v. Baxter Healthcare
Corp. of P.R., 899 F. Supp. 2d 141, 148 (D.P.R. 2012) ("Plaintiff's
attorney is hereby admonished to never again file a sham affidavit
before this Court."); Order at 2, Velazquez-Perez v. Developers
Diversified Realty Corp., No. 10-1002 (D.P.R. June 12, 2012), ECF
No. 131 (striking post-summary judgment affidavit under sham
affidavit doctrine, and noting that "a practice of presenting post
summary judgment affidavits . . . simply makes a mockery out of
Rule 56"); Rivera v. Empresas Y-Nuina, Inc./Kikuet, No. 10-1574,
2011 WL 3443086, at *3-4 & n.3 (D.P.R. Aug. 8, 2011) (noting the
defendant's objection to the plaintiff's submission of a sworn
statement, but declining to find that it was a sham affidavit);
Melendez-Ortiz v. Wyeth Pharm. Co., 775 F. Supp. 2d 349, 359
(D.P.R. 2011) (adopting magistrate judge's recommendation to
disregard portions of affidavit under sham affidavit doctrine);
Mojica v. El Conquistador Resort & Golden Door Spa, 714 F. Supp.
2d 241, 252 (D.P.R. 2010) (noting submission of "self-serving
affidavit," but declining to find that the affidavit was a sham
affidavit); Rivot-Sanchez v. Warner Chilcott Co., 707 F. Supp. 2d
234, 239 & n.1 (D.P.R. 2010) (adopting magistrate judge's
recommendation to strike portions of sworn statement under sham
affidavit doctrine); Marquez v. Drugs Unlimited, Inc., No. 08-
2387, 2010 WL 1133808, at *4-6 (D.P.R. Mar. 22, 2010) (disregarding
several statements in a sworn statement under sham affidavit
doctrine); Order, Baerga-Castro v. Wyeth Pharm., No. 08-1014
(D.P.R. July 15, 2009), ECF No. 78 (granting motion to strike
affidavit); Franco v. Glaxosmithkline, No. 06-1781, 2009 WL
702221, at *7-8 (D.P.R. Mar. 11, 2009) (adopting magistrate judge's
report and recommendation, which disregarded several statements in
sworn affidavit under sham affidavit doctrine); Rivera-Rocca v. RG
Mortg. Corp., 535 F. Supp. 2d 276, 285–86 n.5 (D.P.R. 2008)
(disregarding "sham affidavit"). The district court also cited
Sánchez-Medina v. Unicco Service, Co., No. 07-1880, 2010 WL 3955792
(D.P.R. May 20, 2010); however, that case did not involve an
affidavit submitted by Attorney Escanellas-Rivera, but rather a
motion to strike portions of the plaintiff's (Escanellas-Rivera's
client) deposition testimony because of inconsistencies, id. at
*1–2.


                              - 7 -
                                         II.

            "We review a district court's grant of summary judgment

de novo, and review the record in the light most favorable to the

nonmoving    party,     drawing     all     reasonable    inferences   in   the

nonmoving party's favor."         Del Valle-Santana v. Servicios Legales

de P.R., Inc., 804 F.3d 127, 129 (1st Cir. 2015).                "[W]e review

the district court's decision as to 'the evidentiary materials it

will consider in deciding a motion for summary judgment' only for

'a clear abuse of discretion.'"             Lennon v. Rubin, 166 F.3d 6, 8

(1st Cir. 1999) (quoting EEOC v. Green, 76 F.3d 19, 24 (1st Cir.

1996)).

A.   Escribano's Sworn Statement

            Escribano first contends that the district court erred

in striking his sworn statement.                He argues that "there were no

inconsistencies       between     the     [sworn    statement]   and   previous

statements from Escribano," and that he provided an adequate

explanation for the late filing when he stated that he had to

prepare the sworn statement in order to support facts that HEPA's

counsel never asked about during Escribano's deposition, "but were

raised by HEPA, along with new factual allegations never before

raised in [HEPA's motion for summary judgment]."

            The district court did not abuse its discretion in

striking Escribano's statement.            "[W]here a party has given 'clear

answers to unambiguous questions' in discovery, that party cannot


                                        - 8 -
'create a conflict and resist summary judgment with an affidavit

that is clearly contradictory,' unless there is a 'satisfactory

explanation of why the testimony [has] changed.'"                     Hernandez-

Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir.

2000)       (second    alteration   in    original)     (quoting   Colantuoni   v.

Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir. 1994)); see

also Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 20 (1st

Cir. 2000).

               There     are    a   number       of    inconsistencies     between

Escribano's deposition testimony and his allegations in the sworn

statement.2 For example, in his sworn statement, Escribano alleged

that between March and April 2013, he was subjected to derogatory

comments regarding his age from employees David Ayala, Alfredo

García, Jeniffer Zayas, and Anabel Pérez.                   But earlier in his

deposition,       when     defense       counsel      pressed   him   on    "[w]ho

specifically told [him] that [he was] old," he identified only

Ayala and García.              Defense counsel then asked, "Who else?";

Escribano responded, "That's it."                  Additionally, in his sworn

statement, Escribano claimed that in August 2013, Ayala, García,




        2 The district court did not err in declining to enumerate
each of the inconsistencies between the sworn statement and
deposition. See Orta-Castro v. Merck, Sharp & Dohme Química P.R.,
Inc., 447 F.3d 105, 110 (1st Cir. 2006) ("[W]e can find no
authority whatsoever for the proposition that a district court
must specifically enumerate the contradictions that lead it to
disregard a given piece of evidence.").


                                         - 9 -
and Pérez "told [him] that they did not want [him] working with

them, due to the discrimination charge file[d], and also because

[he] was old and sick and was useless due to the requests for

reasonable accommodation made."          Though Escribano said that Ayala

had made disparaging comments about his age, at no point during

his deposition did he allege the particular discriminatory acts

cited above; indeed, when asked at the end of his deposition if he

could identify any other discriminatory acts against him by Ayala,

García, or Pérez, he answered in the negative.               Elsewhere in his

sworn statement, Escribano alleged that adverse employment actions

were taken against him in 2012.          But in his deposition, Escribano

described    the   alleged    discrimination      as     beginning    in   2013.

Additionally,      in   his   sworn     statement,      Escribano    stated   --

inconsistently -- that employee Alexander Velázquez was elevated

to a position higher than Escribano's in either November 2012 or

March 2013.     In his deposition, though, Escribano stated -- also

inconsistently -- that Velázquez was promoted above him either in

April 2013 or after Escribano filed a discrimination charge in

June 2013.

             The timing of the sworn statement -- signed one day

before   Escribano's     opposition      to    HEPA's    motion     for   summary

judgment was filed -- also supports the district court's conclusion

that Escribano's sworn statement was an inappropriate attempt to

manufacture issues of fact and should be stricken.                    See Orta-


                                      - 10 -
Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,

110 & n.2 (1st Cir. 2006) ("[T]he Statement was executed only after

[the defendant] had filed its motion for summary judgment, thus

suggesting that the Statement was made solely to create an issue

of fact for the purpose of surviving summary judgment," id. at

110.); Torres, 219 F.3d at 20–21 (affirming district court's

decision to strike affidavits that were offered after defendants

had filed motions for summary judgment); Colantuoni, 44 F.3d at 5

("[W]e think it significant that the affidavit was offered only

after defendants had filed motions for summary judgment.             In these

circumstances, we are persuaded that plaintiff's affidavit should

be    disregarded      in     considering    the   propriety    of   summary

judgment.").

            Escribano presents no satisfactory explanation for the

inconsistencies created by his eleventh-hour filing.                 And the

explanation he does offer does not work.             He argues that HEPA's

counsel    did   not     address   certain   factual   allegations    during

Escribano's deposition and then raised them for the first time in

HEPA's motion for summary judgment, which was itself supported by

a    different   sworn      statement,   thereby   entitling   Escribano   to

"support his opposition to the dispositive motion with a [sworn

statement] as for those factual allegations."           But this argument,

which the district court characterized as a "brother counsel did

it first" argument, Reyes, 74 F. Supp. 3d at 493, falls flat


                                    - 11 -
because   it   does   not   explain   why   Escribano's   testimony    is

inconsistent or why he failed to describe certain acts of alleged

discrimination in his deposition even though he was given the

opportunity.    Escribano's insistence that evidence he needed to

support his opposition to summary judgment was unavailable because

defense counsel never asked about it during Escribano's deposition

is meritless; Escribano cannot blame opposing counsel for his

failure to marshal the evidence he required.

          Under these circumstances, the district court acted

within its discretion in striking Escribano's sworn statement.

B.   Grant of Summary Judgment to HEPA

          The harder question is whether HEPA was entitled to

summary judgment on the issue of coverage.        Without reaching the

question of whether his later sworn statement is consistent with

his deposition on this issue, we consider his sworn statement and

conclude that even his best case was insufficient to meet his

burden.

          As the plaintiff, Escribano bears the burden of proving

that HEPA is a covered employer under the ADA and the ADEA.           See

De Jesús v. LTT Card Servs., Inc., 474 F.3d 16, 18–19 (1st Cir.

2007); cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding

that "the threshold number of employees for application of Title

VII [of the Civil Rights Act of 1964] is an element of a plaintiff's

claim for relief"); Aly v. Mohegan Council, Boy Scouts of Am., 711


                                 - 12 -
F.3d 34, 45 (1st Cir. 2013).3       An "employer" for purposes of the

ADA is "a person engaged in an industry affecting commerce who has

15 or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar year."                    42

U.S.C.   §   12111(5)(A).    The    ADEA's     definition    uses    the     same

phrasing, except the employer must have "twenty or more employees."

29 U.S.C. § 630(b).

             The only evidence regarding the number of employees

employed by HEPA that Escribano submitted was an unadorned list of

twenty-seven    names    titled    "Lista     de   Empleados"       ("List     of

Employees").    This list was first submitted as an exhibit during

Escribano's deposition, where HEPA's counsel asked Escribano about

some of the individuals who appeared on Escribano's list but not

in the documents HEPA submitted.        Escribano's answers did little

to flesh out his skeletal list.        The only additional information

he provided was general job titles for the purported employees

(e.g.,   "Helper"   or   "Technician        assistant")     and   very     rough




     3    "Since many of the relevant legal standards applicable
in employment-discrimination cases arising under the ADEA, the
ADA, and Title VII are closely comparable, . . . we cite to them
as appropriate." Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 n.4
(1st Cir. 2002) (citing Dichner v. Liberty Travel, 141 F.3d 24, 30
n.5 (1st Cir. 1998)); see also Serapion v. Martinez, 119 F.3d 982,
985 (1st Cir. 1997) (construing the definition of "employee" for
purposes of Title VII and noting that "[w]e regard Title VII, ADEA,
ERISA, and FLSA as standing in pari passu and endorse the practice
of treating judicial precedents interpreting one such statute as
instructive in decisions involving another").


                                   - 13 -
estimations of the time periods during which some of them allegedly

worked for HEPA.        In his sworn statement, he said the basis for

his testimony was his personal knowledge, "since [he] worked on a

daily basis, along with the employees that appear in the list."

Personal knowledge is, of course, a basis on which to ground

testimony.      See Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st

Cir. 1997). The difficulty for Escribano is that what he submitted

is not enough competent evidence to establish that the additional

people he identified qualified as employees under the case law.

             "[T]he     employment     relationship    is     most     readily

demonstrated by [an] individual's appearance on the employer's

payroll."     Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202,

206 (1997); see De Jesús, 474 F.3d at 21.               Escribano did not

provide any payroll evidence beyond the documents that HEPA had

already submitted.

             Payroll records are not dispositive, though.            De Jesús,

474 F.3d at 22.       Instead, "the ultimate touchstone . . . is whether

an   employer    has   employment    relationships    with"   the    requisite

number of employees -- fifteen for the ADA and twenty for the ADEA

-- "for each working day in 20 or more weeks during the year in

question."      Walters, 519 U.S. at 212.     "A series of Supreme Court

decisions have established that when a statute contains the term

'employee' but does not define it, a court must presume that

Congress has incorporated traditional agency law principles for


                                     - 14 -
identifying     'master-servant      relationships.'"           Lopez      v.

Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009) (citing Clackamas

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–47

(2003); Walters, 519 U.S. at 211–12; Nationwide Mut. Ins. v.

Darden, 503 U.S. 318, 322–23 (1992); Cmty. for Creative Non-

Violence v. Reid, 490 U.S. 730, 739–40 (1989)); see also Casey v.

Dep't of Health & Human Servs., 807 F.3d 395, 404–05 (1st Cir.

2015).   In this circuit, we have applied the common-law agency

test to decide whether an individual is an employee for purposes

of the ADA, see Dykes v. DePuy, Inc., 140 F.3d 31, 38 (1st Cir.

1998), and the ADEA, see Camacho v. P.R. Ports Auth., 369 F.3d

570, 573–74 (1st Cir. 2004); Speen v. Crown Clothing Corp., 102

F.3d 625, 631 (1st Cir. 1996).

             In Reid, the Supreme Court summarized the prevailing

common-law    test   for   determining    whether   an   individual   is   an

employee.4    490 U.S. at 751–52.        In Clackamas, the Supreme Court


     4    "In determining whether a hired party is an employee
under the general common law of agency, we consider the hiring
party's right to control the manner and means by which the product
is accomplished. Among the other factors relevant to this inquiry
are the skill required; the source of the instrumentalities and
tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the
hired party's discretion over when and how long to work; the method
of payment; the hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the hiring
party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party."
Reid, 490 U.S. at 751–52 (footnotes omitted).


                                  - 15 -
"was persuaded that courts should look to the guidelines in the

[Equal Employment Opportunity Commission's ("EEOC")] Compliance

Manual to address the question of when a person is an 'employee.'"5

Lopez, 588 F.3d at 85 (citing Clackamas, 538 U.S. at 448–50).   The

EEOC Compliance Manual states that "[t]he question of whether an

employer-employee relationship exists is fact-specific and depends

on whether the employer controls the means and manner of the

worker's work performance," and identifies a list of sixteen non-

exclusive   factors   for    determining   whether   an   employment

relationship exists.6 EEOC Compliance Manual (CCH), § 2-III(A)(1),

¶ 7110, at 5716–17 (2009).


     5    The Supreme Court in Clackamas recognized "that the
EEOC's guidelines are intended to apply across Title VII, the ADA,
and the Age Discrimination in Employment Act." De Jesús, 474 F.3d
at 24 (citing Clackamas, 538 U.S. at 449 n.7); see EEOC Compliance
Manual (CCH), § 2-I, ¶ 7103, at 5706 (2009).

     6    The sixteen factors are: "[1] The employer has the right
to control when, where, and how the worker performs the job. [2]
The work does not require a high level of skill or expertise. [3]
The employer furnishes the tools, materials, and equipment. [4]
The work is performed on the employer's premises. [5] There is a
continuing relationship between the worker and the employer. [6]
The employer has the right to assign additional projects to the
worker. [7] The employer sets the hours of work and the duration
of the job. [8] The worker is paid by the hour, week, or month
rather than the agreed cost of performing a particular job. [9]
The worker does not hire and pay assistants.        [10] The work
performed by the worker is part of the regular business of the
employer. [11] The employer is in business. [12] The worker is
not engaged in his/her own distinct occupation or business. [13]
The employer provides the worker with benefits such as insurance,
leave, or workers' compensation. [14] The worker is considered an
employee of the employer for tax purposes (i.e., the employer
withholds federal, state, and Social Security taxes). [15] The

                               - 16 -
           Escribano could have created a triable issue as to the

number of employees HEPA had by submitting evidence that, "under

traditional principles of agency law," Walters, 519 U.S. at 211,

the   individuals    on   the     list   he   provided     had    an   employment

relationship with HEPA.       The sparse evidence he provides -- names,

general   job   titles,     and   very   rough    estimates       of   when   those

individuals worked for HEPA -- does not come close to satisfying

the multifaceted common-law agency test.

           "[A]n    issue    is   'genuine'      if   it   'may   reasonably     be

resolved in favor of either party.'"           Vineberg v. Bissonnette, 548

F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 48 (1st Cir. 1990)).             Indeed, a nonmoving party who

bears the ultimate burden of proof at trial, like Escribano, must

"demonstrate that a trier of fact could reasonably resolve [the]

issue in [his] favor."       Borges ex rel. S.M.B.W. v. Serrano-Isern,

605 F.3d 1, 5 (1st Cir. 2010).            Without more concrete, specific

evidence, a reasonable trier of fact simply could not find that

the individuals on Escribano's list that did not appear in HEPA's

filings were in an employment relationship with HEPA.                  Cf. Ost v.

W. Suburban Travelers Limousine, Inc., 88 F.3d 435, 439–40 (7th

Cir. 1996) (finding that an affidavit from an employee that her



employer can discharge the worker.    [16] The worker and the
employer believe that they are creating an employer-employee
relationship."   EEOC Compliance Manual (CCH), § 2-III(A)(1),
¶ 7110, at 5716–17 (2009).


                                    - 17 -
employer had twenty-four employees was "too vague a submission to

carry her burden" to prove that her employer was covered by Title

VII).

             Escribano had ample opportunity during discovery to

obtain more evidence about the employees identified on his list or

on the topic of the number of employees, yet failed to do so.                  He

cannot now claim that he was unable to secure the evidence he

needed to challenge HEPA's motion for summary judgment.                   Not only

did he not do the discovery, but he also did not file a motion

under Federal Rule of Civil Procedure 56(d).           See Fed. R. Civ. P.

56(d) (providing that if a nonmovant "shows by affidavit or

declaration that, for specified reasons, it cannot present facts

essential to justify its opposition," the district court may grant

certain forms of relief); Hicks v. Johnson, 755 F.3d 738, 743 (1st

Cir.     2014)   (noting    that    "Rule    56(d)    allows,       in     certain

circumstances,     for   supplemental   discovery     after     a   motion     for

summary judgment has been filed").

             The evidence Escribano submitted was also insufficient

to     satisfy   the   temporal    requirement   in    the     definition       of

"employer," namely that HEPA had fifteen (or twenty) "or more

employees for each working day in each of 20 or more calendar weeks

in     the   current   or   preceding   calendar      year."         42     U.S.C.

§ 12111(5)(A); see also 29 U.S.C. § 630(b).             In his deposition,

Escribano was unable to provide specific time periods during which


                                    - 18 -
the individuals on his list worked.               Rather, he stated that

individuals worked, for example, "months," "a month," "about a

year ago," and "you could say almost a year."             Indeed, it is not

even clear from his answers whether he is referring to the length

of time that these individuals worked or how long it had been since

they had either started working at or left HEPA.                  This lack of

specifics and clarity prevents Escribano from carrying his burden.

C.   Sanctions

             Finally,     Escribano    challenges      the      imposition      of

sanctions    on    his   attorney   based   on   the   filing    of    the   sworn

statement.        The district court imposed sanctions under Federal

Rule of Civil Procedure 11 and 28 U.S.C. § 1927.7                     In imposing

these sanctions, the district court placed particular emphasis on

Attorney Escanellas-Rivera's long track record of similar tactics,

noting that in one case, he was "admonished to never again file a

sham affidavit before this Court."           Reyes, 86 F. Supp. 3d at 83

(quoting Rodriguez-Fonseca v. Baxter Healthcare Corp. of P.R., 899

F. Supp. 2d 141, 148 (D.P.R. 2012)).


     7    Federal Rule of Civil Procedure 11(c)(1) authorizes the
imposition of sanctions on an attorney who has violated Federal
Rule of Civil Procedure 11(b), which governs attorneys'
representations to the court.
          28 U.S.C. § 1927 provides: "Any attorney or other person
admitted to conduct cases in any court of the United States or any
Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct."


                                    - 19 -
          "We review a district court's imposition of sanctions

for abuse of discretion."   Jensen v. Phillips Screw Co., 546 F.3d

59, 64 (1st Cir. 2008); see CQ Int'l Co. v. Rochem Int'l, Inc.,

USA, 659 F.3d 53, 59 (1st Cir. 2011).         "This standard is not

appellant-friendly, and 'a sanctioned litigant bears a weighty

burden in attempting to show that an abuse occurred.'"        Jensen,

546 F.3d at 64 (quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir.

2003)).    Escribano's   entire    argument   opposing   sanctions   is

predicated on his claim that the district court erred in concluding

that many of his statements in the sworn statement were a sham.

We already rejected that argument above, and Escribano marshals no

other defenses.   We find no abuse of discretion in the court's

order of sanctions.

                                  III.

          For the reasons set forth above, we affirm.




                              - 20 -
