          United States Court of Appeals
                      For the First Circuit


No. 10-2123

                     LUIS AIK AYALA-SEPÚLVEDA,

                       Plaintiff, Appellant,

                                v.

                   MUNICIPALITY OF SAN GERMÁN;
          ISIDRO NEGRÓN-IRIZARRY, Mayor of San Germán,

                      Defendants, Appellees.



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

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


                              Before

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


     Bámily López-Ortiz, with whom Estudio López Toro was on brief,
for appellant.
     Jorge Martínez-Luciano, with whom Law Offices of Pedro Ortiz
Álvarez was on brief, for appellee Municipality of San Germán.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Acting Deputy Solicitor General, and Zaira Z.
Girón-Anadón, Acting Deputy Solicitor General, were on brief, for
appellee Isidro Negrón-Irizarry.


                         January 18, 2012
              TORRUELLA, Circuit Judge.         Plaintiff-Appellant Luis Aik

Ayala-Sepúlveda ("Ayala") appeals the district court's award of

summary judgment to his employer, the Municipality of San Germán,

Puerto Rico ("San Germán" or "the City"), and to the mayor of San

Germán, Isidro Negrón-Irizarry ("Negrón"), on his claim under 42

U.S.C. § 1983 for sex discrimination and retaliation in violation

of the Equal Protection Clause of the Fourteenth Amendment.                      We

conclude that the district court's award of summary judgment was

proper.    We therefore affirm the decision of the district court.

                                 I.    Background

A. Ayala's Employment and Alleged Harassment

              Ayala, a homosexual man, has held various positions with

the City.      At the start of the time period relevant to this case,

Ayala   was    an   employee     of    the   Municipal   Office   of    Emergency

Management ("OMME")1.      Ayala alleges that at various times during

2006 and 2007, while he was studying for his certification as a

rescuer,      his   co-workers    at    OMME   ridiculed   him    for    being   a

homosexual; specifically, Ayala alleges that his co-workers told

him that he could not perform physically demanding tasks because of

his sexual orientation.          Ayala did not identify those co-workers

who allegedly teased him as defendants in his complaint.




1
  This acronym comes from the Spanish name "Oficina Municipal para
el Manejo de Emergencias."

                                         -2-
          On September 10, 2007, Ayala commenced a four-month

extended vacation    from   OMME.     Ayala    claims   that    during    this

vacation, he began a romantic relationship with a male co-worker at

OMME, José J. Rodríguez-Vega ("Rodríguez").             This relationship

allegedly ended when Rodríguez became involved with a female co-

worker at OMME.   Upon returning to work at OMME in January of 2008,

Ayala told his supervisor, Nelson Cruz-Malavé ("Cruz"), that he was

concerned that Rodríguez might physically attack him.                    Ayala

requested that Cruz assign work in such a way that Ayala and

Rodríguez would not have to work together.

          Ayala alleges that when he returned to OMME, his work

conditions changed substantially.         He claims that he was assigned

to "graveyard" shifts not on his regular schedule, that he went for

days without being assigned work, and that he was moved from his

regular office into a storage closet. Ayala complained about these

changes to Negrón, who ordered Cruz to return Ayala to his regular

working hours.     In the meantime, the situation with Rodríguez

escalated, culminating in an incident on February 15, 2008.

According to Ayala, Rodríguez threatened him with physical harm,

and Cruz had to call the Puerto Rico Police to the scene.                Ayala

also alleges that around this time, another OMME employee, Pablo

Miranda-Santana   ("Miranda"),      falsely   accused   Ayala    of   making

unwanted advances and threatened to file a sexual harassment claim

against him.


                                    -3-
           On February 25, 2008, Ayala met with the City's Director

of Human Resources, Juan Crespo ("Crespo"), and with Negrón's

Special Aide, José Iván Torres ("Torres"), to discuss the situation

at OMME. At this meeting, Crespo and Torres recommended that Ayala

transfer to an administrative position with the Municipal Cemetery,

since the City needed to replace an absent worker there.            Ayala

refused the transfer.      The next day, Ayala met directly with

Negrón, who again suggested that Ayala transfer to the Cemetery.

The following day, Ayala met with Negrón again; however, Negrón

also invited Rodríguez and Miranda to the meeting, allegedly

without warning Ayala.    Ayala claims that he was so distressed by

this that he had to seek medical treatment for anxiety.         Some time

later, Ayala's mother and sister met with Negrón to complain about

Negrón's treatment of Ayala.     Ayala alleges that at this meeting,

Negrón attempted to "out" Ayala by telling his mother that his

"sexual definition" was the source of his problems; however,

Ayala's family already knew about his sexual orientation.

           It is not clear whether Ayala spent any time working at

the Cemetery.    Nevertheless, on May 29, 2008, Ayala filed a

complaint with the Comisión Apelativa del Sistema de Administración

de Recursos Humanos del Servicio Público ("CASARH"), the Puerto

Rico   administrative   agency   in   charge   of   reviewing   personnel

actions. The next day, Negrón sent a letter to Ayala informing him

that he was being transferred effective immediately to the City's


                                  -4-
Finance Department.   The letter stated that the transfer was part

of a reorganization program that had been announced one year

earlier under which employees could be transferred between various

departments based on personnel needs.    The transfer to the Finance

Department did not affect Ayala's salary or rank, although Ayala

claims that his duties changed substantially.

          One of Ayala's duties in the Finance Department was to

process the payment of invoices.       Ayala claims that one of the

invoices he was required to process was for payment to the private

attorney whom the City hired to represent it in Ayala's CASARH

proceeding.   Ayala claims that having to process this invoice made

him so nervous and depressed that he required hospitalization.

B. Procedural History

          On May 26, 2009, Ayala filed his complaint in this case

against Negrón and the City in the U.S. District Court for the

District of Puerto Rico.    Ayala claimed that the harassment by his

co-workers at OMME constituted sex discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. ("Title VII").   Ayala contended that Negrón and the City were

liable for this discrimination because they did not prevent the

harassment.    Ayala also claimed that Negrón and the City were

liable for retaliation under Title VII because, following the

filing of his CASARH complaint, the City transferred him to the

Finance Department.     Ayala additionally brought a claim under 42


                                 -5-
U.S.C. § 1983, claiming that Negrón and the City violated his due

process and equal protection rights under the Fourteenth Amendment

by failing to stop the harassment at OMME and by transferring him

to the Finance Department.2

             On August 11, 2009, the defendants moved for judgment on

the pleadings under Fed. R. Civ. P. 12(c) on Ayala's Title VII and

due process claims.         On September 30, 2009, the district court

granted the motion.         See Ayala-Sepúlveda v. Municipality of San

Germán, et al., 661 F. Supp. 2d 130 (D.P.R. 2009) ("Ayala I").            The

court dismissed Ayala's Title VII claims on the ground that "Title

VII   does   not     proscribe   harassment   simply   because    of   sexual

orientation."      Id. at 136 (quoting Higgins v. New Balance Athletic

Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999)) (internal quotation

marks omitted).        The court also found that Ayala had failed to

state   a    claim    for   gender   stereotyping.     Id.   at   136-37.

Additionally, the court dismissed Ayala's procedural due process

claim under 42 U.S.C. § 1983, noting that under Puerto Rico law,

public employees "have a property interest in their continued

employment, not in the functions they perform."                  Id. at 139

(quoting Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st

Cir. 2005)) (internal quotation marks omitted).          Since Ayala only

alleged that he was transferred from one equivalent job to another,



2
   Ayala included various claims under Puerto Rico law, but these
claims are not before us on appeal.

                                      -6-
the court ruled that he had not suffered a deprivation of a

property interest that could sustain a due process claim.         Id.

           On April 30, 2010, the defendants moved for summary

judgment on Ayala's one remaining claim, his equal protection claim

under 42 U.S.C. § 1983. The district court granted the defendants'

motion for summary judgment and dismissed the equal protection

claim on August 2, 2010.     See Ayala-Sepúlveda v. Municipality of

San Germán, et al., 727 F. Supp. 2d 67 (D.P.R. 2010) ("Ayala II").

The court held that because of the one-year statute of limitations

applicable to § 1983 claims in Puerto Rico,3 only the transfer to

the Finance Department and subsequent incidents were actionable.

Id. at 72-73.   In so holding, the court rejected Ayala's argument

that the otherwise time-barred allegations were actionable under

the   "continuing   violation"   doctrine;   this   doctrine   "allows   a

plaintiff to incorporate allegations that would ordinarily be

time-barred if they are part of the same unlawful employment

practice and at least one act falls within the time period."         Id.

at 73 (quoting Quiles-Marcucci v. Cooperativa de Ahorro y Crédito

de Juana Díaz, Inc., No. 08-1913, 2009 WL 1941219, *3 (D.P.R.

Jun. 30, 2009)) (internal quotation marks omitted). The court then


3
   A claim under § 1983 is subject to the statute of limitations
imposed on personal injury claims under state law.      See Centro
Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st
Cir. 2005). In Puerto Rico, the statute of limitations for § 1983
claims is one year. See Marrero-Gutiérrez v. Molina, 491 F.3d 1,
5 (1st Cir. 2007) (citing P.R. Laws Ann. tit. 31, § 5298(2)
(2009)).

                                  -7-
held that because Ayala's transfer to the Finance Department did

not materially change his working conditions, Ayala had suffered no

adverse employment action and thus could not sustain a claim for

retaliation.    Id. at 74.       The court then addressed Ayala's claim

that he had been singled out for discriminatory treatment based on

his sexual orientation.        Id. at 75.     The court rejected this claim

for two reasons.

            First, the court held that there was no basis for holding

Negrón or the City liable for any of the discriminatory acts

alleged in the complaint.        In Puerto Rico, because mayors "are the

government     officials       ultimately     responsible       for    employment

decisions of the municipality," a municipality can be held liable

for   employment     decisions    by   its   mayor.      Rodríguez-García       v.

Miranda-Marín, 610 F.3d 756, 770 (1st Cir. 2010).                Therefore, the

district     court    held     that    the   City     could   be      liable   for

discrimination against Ayala if Negrón condoned discrimination or

himself acted with discriminatory intent.               See Ayala II, 727 F.

Supp. 2d at 75.      The court found that there was no evidence that

Negrón     authorized    or     condoned     the    allegedly      hostile     work

environment at OMME.         See id.   As for the transfer, the sole piece

of evidence Ayala provided to show discriminatory intent was

Negrón's alleged statement to Ayala's mother that his "sexual

definition" was causing his problems. The court held that this was

insufficient to establish Negrón's discriminatory intent.                 See id.


                                       -8-
(citing Ríos-Jiménez v. Sec'y of Veterans' Affairs, 520 F.3d 31,

43-44 (1st Cir. 2008), to note in parenthetical that "offhand

comments 'are not sufficiently severe or pervasive' to amount to

discriminatory changes in employment").

           Second, the court concluded that even if Ayala had been

singled out for transfer because of his sexual orientation, his

transfer to the Finance Department satisfied rational basis review.

The defendants had introduced evidence that Ayala was transferred

based on service needs and in order to resolve the conflict between

Ayala and his co-workers at OMME.          See id. at 76.       Ayala provided

no rebuttal evidence.    Id.

           Ayala now appeals only the grant of summary judgment to

the defendants on the § 1983 claim under the Equal Protection

Clause. He does not appeal the judgment on the pleadings regarding

his Title VII or due process claims.

                              II.   Discussion

           We    first   discuss      whether     the       alleged    acts   of

discrimination that occurred before the transfer to the Finance

Department are actionable. We then consider whether Ayala suffered

any act    of   retaliation   in    violation    of   his    equal    protection

rights.4   Finally, we consider whether Ayala was singled out for


4
  Negrón contends that there is no cause of action for retaliation
under the Fourteenth Amendment.    However, this issue was never
raised to the district court and was only cursorily addressed in
Negrón's brief.   Thus, this argument is waived on appeal.     See
Farris v. Shinseki, 660 F.3d 557, 562 n.5 (1st Cir. 2011).      We

                                     -9-
disparate treatment in any way because of his sexual orientation in

violation of his equal protection rights.

A. Standard of Review

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

novo,   resolving   all   evidentiary    conflicts     and    drawing    all

reasonable inferences in favor of the nonmoving party. Kuperman v.

Wrenn, 645 F.3d 69, 73 (1st Cir. 2011).          "Summary judgment is

appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law."

Cortés-Rivera v. Dep't of Corr. & Rehab. of P.R., 626 F.3d 21, 26

(1st Cir. 2010).      "[W]e are not married to the trial court's

reasoning but, rather, may affirm on any independently sufficient

ground made manifest by the record."       Cahoon v. Shelton, 647 F.3d

18, 22 (1st Cir. 2011).       "The nonmovant may defeat a summary

judgment   motion    by   demonstrating,     through    submissions       of

evidentiary quality, that a trialworthy issue persists."           Iverson

v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)).                However, "a

conglomeration of conclusory allegations, improbable inferences,

and   unsupported   speculation   is   insufficient    to    discharge   the

nonmovant's burden." DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st

Cir. 2005) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896



assume for the purposes of this case that the Fourteenth Amendment
supports a cause of action for retaliation.

                                  -10-
F.2d 5, 8 (1st Cir. 1990)) (internal quotation marks omitted).

"[T]he party seeking to avoid summary judgment 'must be able to

point to specific, competent evidence to support his claim.'"

Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 18 (1st Cir. 1998)

(quoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st

Cir. 1992)).

B. Continuing Violation Doctrine and Hostile Work Environment

           In Puerto Rico, § 1983 claims are subject to a one-year

statute of limitations.    Marrero-Gutiérrez, 491 F.3d at 5.          Based

on the May 26, 2009 filing date of Ayala's complaint, the only

alleged   discriminatory   act   that    occurred   within   the   one-year

limitations period was Ayala's transfer to the Finance Department.5

Ayala argues, however, that the earlier alleged incidents were also

actionable under the "continuing violation" doctrine, which allows

a plaintiff to incorporate allegations that would otherwise be

time-barred if they "are part of the same unlawful employment

practice and at least one act falls within the time period."          Nat'l

R.R. Passenger Corp. v. Morgan (AMTRAK), 536 U.S. 101, 122 (2002).6


5
   Ayala also claims that he suffered an emotional breakdown after
having to process an invoice for payment to the lawyer the City
hired to defend his CASARH claim. However, Ayala makes no argument
in his brief that the defendants made him process the invoice as an
act of discrimination or retaliation. Thus, Ayala has waived any
argument based on this allegation. See United States v. DiTomasso,
621 F.3d 17, 26 n.7 (1st Cir. 2010) (arguments not made in a
party's opening brief are deemed waived).
6
   Although AMTRAK discusses the continuing violation doctrine in
the Title VII context, the doctrine also applies to cases under

                                  -11-
Ayala argues that the "unlawful employment practice" here was the

creation of a hostile work environment.           We thus consider whether

there is sufficient evidence to support Ayala's claim that he

suffered a hostile work environment.

              When determining whether a work environment is hostile,

the   court    considers   "'all     the   circumstances,'   including    'the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance;      and   whether   it    unreasonably    interferes   with     an

employee's work performance.'"             Id. at 116 (quoting Harris v.

Forklift Sys., 510 U.S. 17, 23 (1993)).           None of these factors is

individually determinative of the inquiry.              Bhatti v. Trs. of

Boston Univ., 659 F.3d 64, 73-74 (1st Cir. 2011).

              Looking at "all the circumstances," we agree with the

district court that the discriminatory acts alleged did not rise to

the level of a hostile work environment.           While Ayala claims that

he was ridiculed by his co-workers at OMME, he cites to no evidence

regarding the severity or pervasiveness of the ridicule.                 Ayala

mentions the incident on February 15, 2008 in which Rodríguez

allegedly threatened him, but he also notes that Cruz called the

Puerto Rico Police to the scene to defuse the situation.           Finally,

Ayala has presented almost no evidence to suggest that the alleged



§ 1983. See, e.g., Muñiz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st
Cir. 1994).

                                      -12-
harassment at OMME "unreasonably interfere[d] with [his] work

performance."   AMTRAK, 536 U.S. at 116.   The only factual averment

that comes close to such a showing is Ayala's uncontested claim

that he had to seek medical treatment for anxiety after meeting

with Negrón, Rodríguez and Miranda.   However, there is no evidence

on the record that Ayala's work performance suffered as a result of

his anxiety.    Compare Bhatti, 659 F.3d at 74 (upholding grant of

summary judgment against plaintiff in hostile work environment suit

where plaintiff "sought psychological counseling" but "pointed to

no effect whatsoever on her work performance"), with Arrieta-Colón

v. Wal-Mart P.R., Inc., 434 F.3d 75, 89 (1st Cir. 2006) (upholding

hostile work environment verdict where there was "constant mockery

and harassment" that led to resignation) and Marrero v. Goya of

P.R., Inc., 304 F.3d 7, 19-20 (1st Cir. 2002) (upholding hostile

work environment verdict where there was repeated sexual harassment

that led to decreased performance).

          Because Ayala has not demonstrated that he was subjected

to a hostile work environment to which the continuing violation

doctrine could apply, his allegations regarding events occurring

prior to the one-year statute of limitations period are time-

barred.   Thus, only the transfer to the Finance Department is

actionable.




                               -13-
C. Retaliatory Transfer

           Ayala claims that his transfer to the Finance Department

violated his equal protection rights because the transfer was

ordered as retaliation for Ayala's filing of the CASARH complaint.

In order to succeed on a claim of retaliation, Ayala must prove

that "the employer took a materially adverse employment action

against him."     Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996).

An   employment   action   is   "adverse"   if   it   "results   in   a   work

situation 'unreasonably inferior' to the norm for the position."

Rodríguez-García, 610 F.3d at 766 (quoting Agosto-de-Feliciano v.

Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989)).

           Here, there is no evidence to suggest that Ayala's pay,

rank, or duties changed after he was transferred to the Finance

Department.7    Moreover, Ayala has failed to present any evidence or

explanation as to how the transfer affected him in any other

material way.     Thus, we find that Ayala's transfer to the Finance

Department was not an adverse employment action. Because Ayala did

not suffer any adverse employment action, we find that the district




7
   Ayala contends in his brief that his duties did change.      In
support of this claim, he points to various excerpts from his
deposition that were included in the record before the district
court.   However, these deposition excerpts do not contain any
coherent explanation of how Ayala's duties changed. This will not
do. "[T]he party seeking to avoid summary judgment must be able to
point to specific, competent evidence to support his claim."
Soto-Ocasio, 150 F.3d at 18 (emphasis added) (quoting August, 981
F.2d at 580) (internal quotation marks omitted).

                                   -14-
court properly granted summary judgment as to Ayala's Fourteenth

Amendment retaliation claim.

D. Improper Classification Based on Sexual Orientation

           In addition to arguing that the defendants transferred

him to the Finance Department to retaliate against him, Ayala

argues that the defendants singled him out for transfer because of

his sexual orientation.            Ayala argues that this singling out

violated his equal protection rights.

           In an equal protection case, the court considers "(1)

whether   the   [plaintiff]    was       treated   differently    than    others

similarly situated, and (2) whether such difference was based on an

impermissible consideration, such as race."                 Lopera v. Town of

Coventry, 640 F.3d 388, 402 (1st Cir. 2011) (quoting Macone v. Town

of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002)).               Some evidence of

actual disparate treatment is a "threshold requirement" of a valid

equal protection claim -- and one Ayala fails.              Estate of Bennett

v. Wainwright, 548 F.3d 155, 166 (1st Cir. 2008).

           Ayala    points    to    no    evidence   that    he   was    treated

differently than others similarly situated.            "Plaintiffs claiming

an equal protection violation must first 'identify and relate

specific instances where persons situated similarly in all relevant

aspects were treated differently, instances which have the capacity

to demonstrate that plaintiffs were singled out for unlawful

oppression.'"      Buchanan, 469 F.3d at 178 (quoting Rubinovitz v.


                                      -15-
Rogato, 60 F.3d 906, 910 (1st Cir. 1995)) (alterations to quotation

omitted).      Ayala presents no evidence regarding, for example,

instances in which heterosexual employees with similar rank and

qualifications     were   not    transferred.       Our   case    law   requires

evidence of this nature.         See, e.g., Goncalves v. Plymouth Cnty.

Sherrif's Dep't, 659 F.3d 101, 106 (1st Cir. 2011) (upholding

summary judgment in favor of defendant where plaintiff failed to

show   she   had   comparable     qualifications    to    hired   candidates);

Buchanan, 469 F.3d at 178 (upholding summary judgment in favor of

defendant where plaintiff failed to show that patients with similar

mental conditions were treated differently). Having failed to meet

his threshold requirement, Ayala cannot succeed on his equal

protection claim.     Our inquiry, therefore, is at an end.

              Because Ayala has not presented sufficient evidence of

an equal protection violation to warrant a trial, we find that the

district court properly granted summary judgment to the defendants

on this claim.

                                III.   Conclusion

             For the reasons stated, we affirm the district court's

grant of summary judgment.

             Affirmed.




                                       -16-
