          United States Court of Appeals
                      For the First Circuit

No. 13-1641

                     MARÍA J. COLLAZO-ROSADO,

                      Plaintiff, Appellant,

                                v.

        UNIVERSITY OF PUERTO RICO; MARISOL GÓMEZ-MOUAKAD,

                      Defendants, Appellees.


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

         [Hon. Daniel R. Domínguez, U.S. District Judge]

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


                              Before

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


     Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero and
Martínez-Luciano & Rodríguez-Escudero were on brief, for appellant.
     Edna E. Pérez-Román for appellee University of Puerto Rico.
     Mayra M. González-Reyes, with whom Jiménez, Graffam & Lausell
was on brief, for appellee Marisol Gómez-Mouakad.



                        September 2, 2014
           THOMPSON, Circuit Judge.

                              Overview

           We deal here with a suit by María J. Collazo-Rosado

("Collazo") against the University of Puerto Rico ("UPR") and

Marisol Gómez-Mouakad ("Gómez") — Collazo's former employer and

supervisor, respectively.    A Crohn's-disease sufferer (Crohn's is

a chronic inflammatory disease of the intestine), Collazo contends

that the defendants did not renew her employment contract in

retaliation for her complaining about disability-discrimination —

an action that, she says, infracted 42 U.S.C. § 12203(a), which is

the anti-retaliation provision of the Americans with Disabilities

Act ("ADA").     She also contends that Gómez's conduct constituted

First-Amendment retaliation under 42 U.S.C. § 1983. But on summary

judgment, the district court rejected these claims as a matter of

law.   And in the pages that follow, we explain why the court got it

right.

                             Background

           The relevant facts — read in the light most flattering to

Collazo   (the   summary-judgment    loser),   consistent   with   record

support, see Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 2 (1st

Cir. 2012) — tell the following story.         Collazo has lived with

Crohn's disease for many years, at least since 2005.        Sometime in

2006 she interviewed for a position as "mentorship coordinator" of

the "academic support development center" at the UPR's Humacao


                                    -2-
campus.   The center (which is what we'll call it from now on) is a

federally-funded program at the UPR that (as its name suggests)

offers students academic-support services, specifically in the area

of natural sciences.    Collazo told her interviewer — Dr. Helena

Méndez-Medina ("Méndez"), the center's then-codirector — that if

she got the job, she would have to have access to a bathroom and be

able to use accumulated sick leave to see her doctor or go for

tests.    These were "reasonable accommodations," she told Méndez.

No problem, Méndez replied — or words to that effect.    Ultimately,

the UPR hired Collazo in early winter 2006 on a contract set to

expire in September 2007.   But twice the UPR renewed her contract

on a one-year basis — in September 2007 and again in September

2008.

            Collazo's job involved hiring and training students to

mentor and tutor other students at the center; supervising the

center's secretary, plus those students who worked and received

services there; preparing surveys and reports; and managing the

center's long-term "functionality." Those tasks were hers and hers

alone.    The center was open 7:00 a.m. to 5:00 p.m.   And her shift

ran from 7:30 a.m. to 4:00 p.m.

            About two months after starting at the center, Méndez

sent a memo to all personnel — including Collazo — telling them to

notify the administrative assistant first before missing work,

arriving late, or leaving early.    She also reminded everyone that


                                  -3-
they had to punch a time clock — which was near Collazo's desk — to

signal their arrival at and departure from work.              "No attendance

card will be signed," Méndez added, "if it contains entries made by

hand or changes in the work schedule that ha[ve] not been properly

pre-authorized."    Collazo, all agree, hand wrote her time on cards

dozens of times before and after this memo, offering excuses like

she "forgot to punch" in or the time-clock area was "closed."

            Gómez became Collazo's immediate supervisor in August

2008.   Chatting    together      one   day   around   this   time,   Collazo

mentioned   she   had   Crohn's    disease.      And   she    explained   the

reasonable accommodations she had received and hoped to continue

receiving: the ability to take frequent bathroom breaks and attend

medical appointments.     "[D]on't worry," Gómez told her, though she

did ask Collazo to give center personnel a heads-up — by telephone,

email, or text — whenever she was arriving late, leaving early, or

away from her desk for any "considerable" span of time. The reason

for this was that Collazo's job required that she be physically

present at the center to supervise student mentors and tutors.

            Collazo, it turns out, "normally" gave prior notice when

she had a medical appointment.          "Normally" is her word, not ours.

And Gómez granted every one of her leave and absence requests —

whether medically related or not — and never expressly or even

impliedly stated that she could not take bathroom breaks.




                                    -4-
          Eventually, however, Gómez became concerned that the

center was not meeting the program's goals and objectives. Here is

what happened:   In January 2009 the codirector of a center at the

UPR's Arecibo campus — Dr. Philippe Scott — told Gómez that he too

thought her center was underperforming, based on a head-to-head

comparison of the two centers.    On top of that, other professors

complained about how the tutoring system was running.     Professor

Rolando Tremont, for example, director of the chemistry department

at the UPR's Humacao campus, told Gómez he thought the center was

not offering enough mentor and tutoring sessions to students in his

department.   He also complained that mentors and tutors were not

regularly attending classes in his department.      They needed to

attend classes regularly, he said, because that way they would know

what was being taught, which would make them better chemistry

mentors and tutors at the center.

          Worried that the federal government might defund the

program, Gómez took a more active role in the center's operations,

zeroing in on the staff's performance.       She held meetings to

discuss ways to improve.   And she asked Collazo to put on more and

different workshops.   She also issued a memo in March 2009 that

basically mirrored the one Méndez had issued two years earlier:

Gómez reminded everyone — including Collazo — that persons needing

to modify their work schedule must give advance notice.     "[T]ime

cards," Gómez added, "must be punched at the corresponding times,


                                 -5-
not earlier or later without justification.         No attendance card

will be signed if it contains entries made by hand or changes in

the work schedule that ha[ve] not been properly pre-authorized."

Collazo signed the bottom of that memo.

          Keeping an eye on her underlings' attendance, Gómez saw

that Collazo was either coming in late, leaving early, or leaving

her work area for long stretches — without giving anyone any

advance notice.   So Gómez wrote her up, noting that her actions

left the students without supervision; that they had talked about

this problem many times before; that her "behavior [was] not

permissible"; that she must follow proper protocol; and that she

had at her disposal a number of ways to give the required notice.

Collazo later tried to defend herself, saying:        "If I was absent,

well, I would call in."         But "they would hardly answer the

telephone," she added — probably, she speculated, because "they"

checked the "caller ID" before deciding whether to pick up.            She

also later claimed that she had justified "all of these leaves"

with "medical documents."     But the record evidence she cites to is

a doctor's note dealing with just one absence.          For what it is

worth, the UPR never lowered her salary because of her absences nor

discounted the times that she was not at her work area.

          Regrettably,   on   at   least   one   occasion   the   visiting

boyfriend of the secretary at the center laughed and made comments

every time Collazo left the office, saying things like:            "Again.


                                   -6-
Look, Juliana, again." We infer that he was referring to Collazo's

trips to the bathroom.            Collazo felt humiliated by the event.         And

she complained to Gómez, apparently, who did nothing about it. The

record shows, though, that Gómez never made fun of Collazo's

medical condition and never allowed any employee to make fun of her

condition either.

             Fed   up     with     what   she   thought     was    discriminatory

treatment, Collazo complained to her union, formally asked the UPR

for reasonable accommodations (ready access to a bathroom and

flexibility to attend medical appointments), and filed charges of

disability-based discrimination and retaliation with the Equal

Employment    Opportunity         Commission    ("EEOC").     To    back   up   her

position, she got a medical certificate from the director of the

UPR's Center for Inflammatory Bowel Disease.               The certificate read

in part:

             [Collazo's] condition is protected by the
             [ADA].        [She]     requires    reasonable
             accommodation in her work.    She needs ready
             access to the bathroom, and flexibility in her
             time schedule to allow for visits to the
             physician, laboratory or other diagnostic or
             treatment facility.     She may unexpectedly
             become ill and require use of her sick leave
             without prior warning.

             Concluding       that     Collazo's    reasonable-accommodation

request    simply        sought     "improv[ed]    labor    relations      in   the

workplace,"        the     UPR's       reasonable-accommodation         committee

recommended in June 2009 that the "parties" try to resolve their


                                          -7-
differences "voluntarily" through something called the "Employee

Assistance Program."         As for the EEOC matter, the record does not

tell us what happened there.         But neither the UPR nor Gómez argues

that Collazo failed to exhaust her administrative remedies.                    And

because that issue does not go to our jurisdiction, see O'Rourke v.

City of Providence, 235 F.3d 713, 725 n.3 (1st Cir. 2001), we say

no more about that subject.

              Moving   on,   we   see   that   Gómez     completed    a   written

evaluation of Collazo's performance in June 2009, giving her an

overall "B" rating. "B" stands for "Below Expectations. Failed to

meet expectations or met them only partially." Gómez explained her

thinking in writing, emphasizing that Collazo had done a poor job

training and supervising tutors and mentors; had run workshops that

did not meet the science and math departments' needs; had failed to

conduct   a    required      "satisfaction     survey"    with   participating

students; and had failed to follow the attendance policy. "I don't

agree with the evaluation," Collazo wrote in response.                    "It is

subjective and does not respond to the reality of the process."

              Collazo's   employment     contract   was    due   to   expire    in

September 2009.        And Gómez recommended that the UPR not renew it,

noting that Collazo's performance was not up to snuff and that the

program needed some restructuring.            So in August 2009, Gómez wrote

Collazo and said the UPR had decided not to re-up her, citing the

restructuring rationale.          The letter pertinently provides:


                                        -8-
               During the past months we have discussed with
               the [program's] Director the functions, costs
               and projections of [the center's] Tutors and
               Mentors Coordinator position, which you occupy
               at present.

               In response to these changes, we have decided
               not to extend you a new contract for the next
               year . . . .

               Later, Gómez appointed two persons to fill Collazo's old

job.       And the center's performance dramatically improved with them

at the helm: the center offered more mentor and tutoring sessions,

and the participating students got better grades as a result.

               Believing that she was the victim of retaliation for

complaining about disability discrimination, Collazo filed this

federal-court lawsuit, naming the UPR and Gómez as defendants.

Besides a retaliation claim against the two under the ADA, Collazo

also asserted a First Amendment free-speech retaliation claim

against Gómez under § 1983.1          On the recommendation of a magistrate

judge, however, the district court granted summary judgment to the

UPR and Gómez.        "Accept[ing]" that Collazo had made out a prima

facie ADA-retaliation claim, the court made two key findings:

first,       that   the   UPR   and   Gómez   had   put   forth   legitimate,

nonretaliatory reasons for not renewing her contract — her not

fulfilling "the [c]enter's goals, which required a restructuring at


       1
       She alleged equal-protection and Puerto-Rico-tort claims
too. But she voluntarily dismissed her equal-protection claim with
prejudice. And after disposing of her federal claims on summary
judgment, the court declined to exercise supplemental jurisdiction
over her commonwealth claim. Neither of these claims is before us.

                                        -9-
the   [c]enter,"   and   her   not    "comply[ing]   with"    the   center's

"attendance policy," to quote the court — and second, that she had

not shown that these reasons were really just pretext masking

retaliatory intentions. The court then ruled that Collazo's First-

Amendment-retaliation claim failed because, as the court saw it,

"the ADA constitutes an exclusive remedy" here. Which brings us to

Collazo's appeal.

                           Standard of Review

           We give fresh review to the district court's summary-

judgment   decision,     construing     all   reasonable     inferences   in

Collazo's favor and affirming only if no genuine issue of material

fact remains and the UPR and Gómez are entitled to judgment as a

matter of law. See, e.g., Nieves-Romero v. United States, 715 F.3d

375, 378 (1st Cir. 2013); Soto-Padró, 675 F.3d at 5.             Of course,

conclusory assertions, improbable inferences, and sheer speculation

cannot save Collazo from summary judgment.            See, e.g., Nieves-

Romero, 715 F.3d at 378; Soto-Padró, 675 F.3d at 5.             And we can

sustain the grant of summary judgment on any basis the record

supports, including one not relied on by the court.             See, e.g.,

Soto-Padró, 675 F.3d at 5.

           We now take on the issues in play, adding additional

details as needed.




                                     -10-
                              ADA Retaliation

             Up first is whether the district court erred in rejecting

Collazo's ADA-retaliation claim on summary judgment. We start with

the basics.        The ADA, broadly speaking, makes it illegal for

employers either to discriminate because of a person's disability,

see 42 U.S.C. § 12112(b)(1), or to retaliate against someone

because she opposes an act made unlawful by the ADA, see 42 U.S.C.

§ 12203(a).     The fight here focuses on retaliation.            And because

Collazo tries to show retaliation through circumstantial evidence,

we   apply   the   familiar   burden-shifting      analysis.      Under    that

framework, Collazo must first show that she engaged in statutorily-

protected    activity;   that   the    UPR   and   Gómez   took   an   adverse

employment action against her; and that a causal connection existed

between their action and her activity.         See, e.g., Kelley v. Corr.

Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).             If she makes

this prima facie showing, the burden shifts to the defendants to

offer a legitimate, nonretaliatory reason for their actions, and

then back to her to show that the reason was mere pretext.             See id.

To establish pretext she must show that the explanation was a lie,

which would let a factfinder infer that the defendants made the

story up to cover their tracks.          See Ronda-Pérez v. Banco Bilbao

Vizcaya Argentaria—P.R., 404 F.3d 42, 45 (1st Cir. 2005).                 It is

not enough for her to show that they were wrong or tactless.                See

id.; see also Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.


                                      -11-
2002).       After all, the law does not empower courts to act as

"super-personnel department[s]," looking to undo bad employment

decisions.          Gonzalez, 304 F.3d at 69 (parenthetically quoting

Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.

1988)).

                 "The simplest way to decide a case is often the best," we

have noted.        Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,

248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560,

564 n.4 (8th Cir. 1998) (R. Arnold, J.)).                And there is a simple

way here.

                 Like the district court, we assume without deciding that

Collazo established a prima facie inference of retaliation.                 Also

like the lower court, we accept for argument's sake that the UPR

and    Gómez       effectively   rebutted       her   prima   facie   showing   by

responding that it did not renew her contract both because she

failed to meet the goals set for the center, necessitating the

center's restructuring, and because she failed to follow the

center's attendance policy.             That leaves us only with the pretext

question.2

                 One way to establish pretext is to show that the UPR and

Gómez gave "different and arguably inconsistent explanations" for

their actions. See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d

424,       432   (1st   Cir.   2000).      "[W]eaknesses,     implausibilities,


       2
           The parties jump straight to pretext too.

                                         -12-
inconsistencies, incoherencies, or contradictions" in their proffer

can do the trick, see Harrington v. Aggregate Indus.-Ne. Region,

Inc., 668 F.3d 25, 33 (1st Cir. 2012) (internal quotation marks

omitted)3 — unless the record conclusively reveals that the real

motive was an unstated reason that is nonretaliatory, see Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).                  With

that said, Collazo's pretext argument proceeds in five steps. One:

The nonrenewal notice from the UPR and Gómez mentioned the center's

restructuring as the reason for their decision.              Two:     Yet they

suggest in this court (as they did in the district court) that they

had two valid reasons for the nonrenewal, i.e., (a) her not

fulfilling     the   center's    objectives,     requiring    the     center's

restructuring, and (b) her not following the center's attendance

program — even though they never admonished her for her performance

or disciplined her for her absences.           Three:    But — to quote her

brief — they floated "[n]one of these alleged reasons" in the

nonrenewal letter, concocting them "after the fact."                Four:    And

these sham justifications became a convenient pretextual basis for

getting rid of her.        Five:     So summary judgment on the ADA-

retaliation claim cannot stand.

             Although cleverly crafted, we cannot accept Collazo's

argument.      For   starters,     she   cites   no     contract    provision,



     3
       Accord Hodgens v. General Dynamics Corp., 144 F.3d 151, 168
(1st Cir. 1998).

                                    -13-
regulation, statute, or caselaw suggesting that the UPR and Gómez

had to give her every reason they had for not renewing her

contract.    Consequently any argument in this direction is waived

for lack of development.    See, e.g., Medina-Rivera v. MVM, Inc.,

713 F.3d 132, 140-41 (1st Cir. 2013) (deeming waived an argument

"not fully developed, lacking any citation to supporting authority

(or even a persuasive explanation of what the law should be,

assuming they found no authority)").

            Also, a key premise of her theory — that performance and

attendance issues are simply post-hoc inventions, conjured out of

thin air after the fact to hide retaliatory animus — enjoys no

record support.     Actually, and devastating to her thesis, the

summary-judgment evidence cuts the other way.

            As for performance, remember how Dr. Scott and Professor

Tremont gave Gómez an earful on the center's slipshod mentor and

tutor program.     And do not forget, Collazo was the center's

frontline person, tasked with hiring, training, and supervising

mentors and tutors, among other things.       Gómez convened staff

meetings as well — which Collazo attended — to discuss performance

fixes, with one idea being offering other kinds of workshops.

Recall too how in evaluating her work, Gómez stamped Collazo's net

performance "below expectations."      And to mention just a few of

Collazo's shortcomings, we remind the reader that Gómez criticized

her workshop offerings, her supervision of mentors and tutors, and


                                -14-
her failure to follow the center's written attendance policy;

admonishments every one — and chronicled along the way too —

despite what Collazo now suggests.

           As for attendance, remember the paper trail of Gómez-

penned memos documenting Collazo's many unannounced leaves, late

arrivals, and early takeoffs, for example, not to mention her

frequent failure to punch in and out on the time clock as required.

Gómez's   evaluation   likewise   highlighted    Collazo's   attendance

problems, as we noted a second ago.             Collazo says that she

"normally" gave prior notice whenever she had a scheduled medical

appointment.   How this helps her with her other absences — which

left the center unattended for large chunks of time — she does not

say. Regardless, "'[n]ormally' does not mean 'always,'" obviously.

Rodríguez v. Municipality of San Juan, 659 F.3d 168, 178 (1st Cir.

2011). Also, she admits to not always punching the time clock like

she was supposed to, often because she just plain "forgot" to do

so.   But wait, she protests, there is no record evidence that the

defendants took disciplinary action against her because of any

absenteeism or tardiness.   And — her argument continues, at least

inferentially — they first had to have initiated disciplinary

proceedings to have a shot at fending off her pretext challenge.

The difficulty for Collazo, though, is that she cites no authority

for that proposition.     Nor does she explain why she is right

despite the lack of authority. Thus any argument along these lines


                                  -15-
is waived due to inadequate briefing.                    See, e.g., Medina-Rivera,

713 F.3d at 140-41.             In any event, the fact that the defendants

chose not to take more serious disciplinary action does not itself

permit a reasonable inference that the extensive contemporaneous

evidence of her attendance problems is inaccurate or insincere.

                  The bottom line is that the summary-judgment record

undoes          Collazo's    claim   that      the    performance       and   attendance

rationales were a sham dreamed up by the defendants after her

nonrenewal to hide their retaliatory intentions. That pokes a very

large hole in her pretext theory.                    So too does the fact that the

defendants mentioned the restructuring rationale — which also has

record support — in their nonrenewal letter and then in their court

papers. That is a consistency, clearly, not an inconsistency. And

here       is    the   clincher:        The    general      rationale    noted       in    the

nonrenewal notice (restructuring) and the more specific ones noted

in   later        documents     (poor    performance,       requiring     the    center's

restructuring, plus attendance problems) are not inconsistent; the

need for a restructuring jibes with the defendants' documented

unhappiness with Collazo's less-than-successful tenure at the

center, what with her performance and attendance issues.                             At the

very       least    the     rationales   are    not    so    inconsistent       as    to   be

"unworthy of credence," which is the test.4                      See, e.g., Hodgens,


       4
       As a parting shot, Collazo accuses the defendants of
"manufactur[ing]" a document — called a "certification" — years
after they "show[ed]" her "the door." Prepared by the UPR's human

                                              -16-
144 F.3d at 168 (internal quotation marks omitted).        It follows —

like night the day — that Collazo failed to meet her burden of

creating a triable issue of fact on the pretext question.         And so

the court rightly granted the defendants summary judgment on this

part of the case.

                      First-Amendment Retaliation
                              Under § 1983

          Collazo   next   challenges   the   lower   court's   grant   of

summary judgment on her First-Amendment-retaliation claim brought

against Gómez under § 1983.    Generally speaking, a claim like that

requires a plaintiff to show that she spoke on a matter of public

concern and that her speech was a "motivating factor" — i.e., that

it "played a substantial part" — in triggering the supposedly

retaliatory action.    See, e.g., Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 286-87 (1977) ("Mt. Healthy," for

short); Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir. 2013).           If

she can do that, the burden then shifts to the defendant to show




resource department at the UPR's lawyer's request, the document
discusses the restructuring that took place at the center post-
Collazo. She gives no indication that she ever asked the district
court to strike the certification, even though she insists that
that document is not "'admissible evidence'" because "it is not
supported by any contemporaneous records." But the certification
is buttressed with a number of supporting documents written hard on
the heels of her nonrenewal (the defendants made this point in
their brief, yet Collazo's reply brief does not mention it). So
her argument here does her no good. In any event, we have relied
only on some of the supporting papers and not on what was written
in the certification.

                                 -17-
that she would have taken the same action without the speech. See,

e.g., Mt. Healthy, 429 U.S. at 287.

          Moving from the general to the specific, we remind all

that in jettisoning this claim, the district court deemed relief

unavailable under § 1983 because it thought the ADA was the

exclusive remedy for Collazo.      The parties, naturally, debate the

correctness   of   the   court's   ruling,   particularly   in   light   of

Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009).

That case holds that Title IX of the Education Amendments of 1972

"was not meant to be an exclusive mechanism for addressing gender

discrimination in schools, or a substitute for § 1983 suits as a

means of enforcing constitutional rights."        Id. at 258.

          We have not yet decided how Fitzgerald applies in a case

like Collazo's.     And today is not the day to do so.            That is

because even if we assume favorably to her that the ADA does not

foreclose § 1983 relief in a post-Fitzgerald world (and we intimate

no opinion on that score), she runs up against another problem:

She would still have to show that her speech was both protected and

a substantial or motivating factor in the defendants' adverse-

employment decision.     And this she cannot do because — regardless

of whether she engaged in protected speech (a matter on which we

need not opine) — having failed to show that the defendants'

explanations for her nonrenewal really constituted pretext for ADA

retaliation, she also "fail[s] to generate a genuine issue of


                                   -18-
material fact on the 'substantial or motivating factor' element"

for First-Amendment retaliation.5   See D.B. ex rel. Elizabeth B. v.

Esposito, 675 F.3d 26, 43 (1st Cir. 2012).    Ultimately, then, the

district court properly granted summary judgment to Gómez on this

claim, even though we took a different tack in reaching that

conclusion.

                           Final Words

          Our work over, we affirm the judgment below in all

respects and award the defendants their costs on appeal.




     5
       Collazo's counsel candidly conceded at oral argument that if
her ADA-retaliation claim failed so too would her First-Amendment-
retaliation claim.

                               -19-
