          United States Court of Appeals
                     For the First Circuit


No. 17-1512

                MARTHA ISABELLE BONILLA-RAMIREZ,

                      Plaintiff, Appellant,

                               v.

  MVM, INC., d/b/a MVM Security, Inc., a/k/a MVM International
           Security, Inc.; CHRISTOPHER MARTIN MCHALE,

                     Defendants, Appellees,

 JEH CHARLES JOHNSON, acting in his individual capacity; LORETTA
  E. LYNCH, acting in her individual capacity; KIRSTJEN NIELSEN,
    acting in her official capacity; ELPIDIO NUNEZ; JEFFERSON B.
   SESSIONS, III, acting in his official capacity; UNITED STATES
 DEPTARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION AND
      CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF JUSTICE,

                           Defendants.


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

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


                             Before

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


          Humberto Cobo-Estrella, with whom Cobo Estrella Law
Office was on brief, for appellant.
          Ana B. Rosado-Frontanés, with whom Schuster Aguiló LLC
was on brief, for appellees.
September 14, 2018
           BARRON,   Circuit    Judge.     Martha   Bonilla-Ramirez

("Bonilla") is a former employee of MVM, Inc. ("MVM"), which is a

private security company that is based in Puerto Rico and provides

security services to the United States Immigration and Customs

Enforcement ("ICE").   Following Bonilla's termination from MVM in

2014, she brought a variety of federal and Puerto Rico law claims

against her former employer and other defendants in the United

States District Court for the District of Puerto Rico.          The

District Court dismissed all but her claims against MVM under Title

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

and related Puerto Rico laws, and then granted summary judgment to

MVM as to those claims.    Bonilla now appeals that summary judgment

ruling, which we affirm.

                                  I.

           While working for MVM, Bonilla was assigned to the Luis

Muñoz Marín International Airport in San Juan, Puerto Rico (the

"airport").   Her responsibilities included providing security for

detainees in ICE custody at ICE's detention facility in the

airport.

           On June 14, 2014, Bonilla reported to her supervisor an

incident at the airport that occurred that same day and that

involved a dispute between her and another MVM employee, Abraham

Ortiz ("Ortiz").     Bonilla's supervisor asked her to produce a

written account of what had occurred.    In her written statement to


                                - 3 -
her supervisor, which she submitted on June 20, Bonilla complained

that Ortiz was ordering her around, requesting that she do all of

their work, "calling [her] out for using her [personal] cellphone,"

and generally acting like her supervisor.            Ortiz, for his part,

sent a letter on June 18 to a supervisor at MVM in which he

complained, among other things, about Bonilla having directed foul

language toward him during the June 14 incident.

              On June 24, three supervisors met with Bonilla and Ortiz

about   the    incident.    One   of   the    supervisors   wrote   a   report

following that meeting, and MVM then looked further into the

complaints that Bonilla and Ortiz had lodged against each other.

MVM asserts that it determined from its inquiry that immediately

prior to the June 14 incident between Bonilla and Ortiz, Bonilla

had "[abandoned her post] for approximately two hours" with another

MVM employee, Alexandra Rodriguez ("Rodriguez"), who was off duty.

MVM also asserts that through this inquiry it determined, based on

its analysis of an airport security video, that while away from

her post with Rodriguez, Bonilla had engaged in conduct known as

"piggybacking," which involves following another person through a

secured door without both swiping one's airport badge and entering

one's personal code on a keypad.             Finally, MVM asserts that its

inquiry showed that Bonilla had used her personal cellphone during

work hours.




                                   - 4 -
             On June 24, 2014, MVM reported these findings to ICE.

On July 10, 2014, MVM cited Bonilla for committing multiple

"security violations," which included abandoning her post, using

her personal cell phone, and engaging in piggybacking.          That same

day, MVM gave her a verbal warning, took away her airport badge,

and notified her that she was being reassigned to another post,

not at the airport.

             On August 12, 2014, Bonilla filed a charge of gender

discrimination and retaliation against MVM with the United States

Equal Employment Opportunity Commission ("EEOC").        Bonilla's EEOC

charge was faxed to MVM that same day.       That evening, ICE sent an

email   to    Jay   Vergel   ("Vergel"),   MVM's   Operations   Manager,

requesting that Bonilla be immediately removed from providing

services for ICE under its contract with MVM. Minutes after Vergel

received that email, he instructed his team to make sure that she

was "removed" that day.      That same evening, MVM called Bonilla and

asked her to report to work the next day, August 13, 2014.       Bonilla

did not do so, but she did report to work on August 14, when she

was informed that she was terminated, effective August 13.

             On May 14, 2015, Bonilla filed suit against MVM and other

defendants in the District of Puerto Rico in which she brought a

variety of claims under federal and Puerto Rico law.       The District

Court dismissed most of those claims, such that her only remaining

claims were her Title VII claims against MVM and her discrimination


                                  - 5 -
and tort claims against that same defendant.1          The District Court

then granted MVM's motion for summary judgment on these remaining

claims.

              Bonilla now appeals the District Court's ruling granting

summary judgment to MVM as to each of Bonilla's three distinct

Title VII claims, which are for, respectively, creating a hostile

work       environment,    gender-based    disparate     treatment,   and

retaliation, and as to each of her related Puerto Rico law claims.

We review a grant of summary judgment de novo, affirming the grant

of summary judgment where, drawing all inferences in favor of the

nonmoving party, the record discloses no genuine issues of material

fact and demonstrates that the moving party is entitled to judgment

as a matter of law.       See Delaney v. Town of Abington, 890 F.3d 1,

5 (1st Cir. 2018).

                                    II.

                                    A.

              We start with Bonilla's challenge to the grant of summary

judgment to MVM on her hostile work environment claim, which she




       1
       The previously dismissed claims include the federal and
Puerto Rico law claims against U.S. Immigration and Customs
Enforcement, the U.S. Department of Homeland Security, the U.S.
Department of Justice, various federal officials, and MVM's
General Counsel Christopher McHale ("McHale"), as well as a
Racketeer Influenced and Corrupt Organization Act ("RICO"), 18
U.S.C. §§ 1962, 1964, claim against MVM.


                                   - 6 -
bases on the alleged conduct of Ortiz.         We may dispose of this

challenge quickly.

           The District Court gave a number of reasons for granting

MVM summary judgment as to this claim, including that Bonilla had

failed to exhaust her administrative remedies because she had not

raised this claim in the charge that she filed with the EEOC on

August 12, 2015.     Bonilla, however, does not address this ground

at all in her briefing to us, and so she has waived any challenge

to it.    See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d

25, 29 (1st Cir. 2015).           Accordingly, we affirm the grant of

summary judgment as to this claim.

                                     B.

           We next address Bonilla's challenge to the District

Court's grant of summary judgment to MVM on her claim under Title

VII that MVM unlawfully subjected her to disparate treatment

because of her gender by disciplining her in the way that it did.

Because   Bonilla   relies   on    circumstantial   rather   than   direct

evidence of discrimination to support this claim, the District

Court applied the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), in ruling on

MVM's summary judgment motion.2


     2 Below, and in line with MVM's summary judgment briefing,
the District Court also applied the McDonnell Douglas framework to
assess whether summary judgment was appropriate. In applying this
framework, the District Court noted that not only did Bonilla "not


                                    - 7 -
          The McDonnell Douglas framework requires a plaintiff, in

order to survive summary judgment, to "first establish a prima

facie case by showing that: (1) she belonged to a protected class,

(2) she performed her job satisfactorily, (3) her employer took an

adverse employment decision against her, and (4) her employer

continued to have her duties performed by a comparably qualified

person," Burns v. Johnson, 829 F.3d 1, 9 n.8 (1st Cir. 2016)

(quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217

F.3d 46, 54 (1st Cir. 2000)). If the plaintiff establishes a prima

facie case, then she is entitled to an inference of discrimination.

Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 57 (1st Cir.

2018).   And thus, at that point, "the burden of production then

'shifts to the employer to state a legitimate, nondiscriminatory

reason for the adverse employment action.'"   Burns, 829 F.3d at 9

n.8 (quoting Santiago-Ramos, 217 F.3d at 54).     If the defendant

meets that burden of production, then the plaintiff bears the

ultimate burden of proof to show that the employer's proffered

nondiscriminatory reason for the adverse employment action was a



argue that any other test applies," see, e.g., Burns, 829 F.3d at
9 n.9 (describing the "mixed-motives theory" that "applies to cases
where multiple motives lie behind an adverse employment action"),
but also "the record d[id] not evince multiple motives."         On
appeal, Bonilla cursorily suggests that another framework, which
applies to a mixed-motives theory of discrimination, may also be
applicable. However, as this argument was neither presented below,
see United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992), nor
developed on appeal, see Schneider v. Local 103 I.B.E.W. Health
Plan, 442 F.3d 1, 3 (1st Cir. 2006), we do not consider it.


                              - 8 -
pretext   and     that   the   employer       did   intentionally      discriminate

against her because of her sex.               See id.

              We assume, as the District Court did, that Bonilla has

successfully established a prima facie case for this claim under

McDonnell Douglas.           And, we conclude, as the District Court did,

that MVM met its burden to assert a legitimate nondiscriminatory

reason for the adverse employment actions that Bonilla contends

that MVM took against her.              To do so on summary judgment, MVM

needed only to produce "enough competent evidence, taken as true,

to enable a rational factfinder to conclude that there existed a

nondiscriminatory reason for the challenged employment action[.]"

Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir.

1997) (emphasis in original).           And, as the District Court properly

found,    MVM    asserted      that    Bonilla      incurred    several      security

violations while performing her duties, which included abandoning

her post, using her cell phone while on duty, and piggybacking

through secured airport doors.           According to MVM, these violations

were prohibited by both the MVM and ICE Standards of Conduct.

Thus, MVM has met its burden under McDonnell Douglas to put forth

a legitimate, nondiscriminatory reason for its adverse employment

actions against Bonilla.            Vélez v. Thermo King de P.R., Inc., 585

F.3d   441,     449   (1st   Cir.     2009)    (noting   that   code    of   conduct

violations      are    "legitimate,       non-discriminatory        reasons"     for

termination).


                                        - 9 -
           There is still the question, though, whether Bonilla has

shown that there is a genuine issue of triable fact as to whether

MVM's proffered nondiscriminatory reasons for its actions are

pretextual.     And it is at this step that the District Court

concluded that Bonilla came up short.           We agree.

           In contending otherwise, Bonilla rightly points out that

evidence   of   an   employer's     disparate     treatment      of    similarly

situated male employees can support a finding that a proffered

nondiscriminatory     basis   for    an      employer   taking    an    adverse

employment action against a female employee is a pretext for sex

discrimination.      See Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,

181 F.3d 15, 21 (1st Cir. 1999) (quoting Mitchell v. Toledo Hosp.,

964 F.2d 577, 583 (6th Cir. 1992)).            But, contrary to Bonilla's

contention, the record simply does not provide a basis from which

a reasonable jury could conclude that the three male employees

whom Bonilla identifies as having been similarly situated to her

but not similarly disciplined for their misconduct were in fact

similarly situated to her.

           The record shows that Bonilla was terminated after ICE

had requested that MVM prevent her from providing services to ICE

under its contract with MVM.          Nothing in the record indicates,

however, that ICE made any similar request with respect to any of

the three male comparators that she identifies.




                                    - 10 -
           Bonilla   does   also   contend   that    she   was   subject   to

disparate treatment relative to these three male employees through

other adverse actions that MVM took against her.            In particular,

she points to the fact that MVM removed her airport badge and

reassigned her to another post under the ICE contract for her

alleged misconduct.     But Bonilla acknowledges MVM's contention

that it removed her airport badge, and in consequence of that

removal reassigned her to a post not at the airport, because of

conduct by Bonilla that it had concluded constituted a "security

violation," in the form of "piggybacking."          Yet Bonilla identifies

no evidence to indicate that the three male employees that she

contends are similarly situated to her engaged in misconduct that

constituted a "security violation."          In fact, the only other

employees in the record who were cited as engaging in conduct that

ICE or MVM considered to be a "security violation" -- David

Santiago ("Santiago"),3 a male, and Rodriquez, a female off duty

detention officer involved in the same incident as Bonilla -- lost

their airport badges and were terminated after ICE requested that

they be removed from performing duties under the ICE/MVM contract

due to these security violations.4


      3Santiago, who was also an MVM detention officer, was alleged
to have failed to store his MVM-authorized weapon in a designated
area before accessing a secured and restricted area while on duty
and performing a transportation detail on June 14, 2014.
      4In consequence of her conduct on June 14, which MVM described
as   "access[ing] airport security doors" while off-duty and


                                   - 11 -
             We   thus   conclude   that      Bonilla's     challenge    to   the

District Court's pretext ruling fails.                 And, accordingly, we

affirm the grant of summary judgment to MVM as to Bonilla's

disparate treatment Title VII claim.

                                        C.

             We turn, then, to Bonilla's remaining claim under Title

VII, which is for retaliation.               To demonstrate retaliation in

violation of Title VII, "a plaintiff must show that (i) she

undertook     protected    conduct,     (ii)    she    suffered   an    adverse

employment    action,     and   (iii)   the    two   were   causally    linked."

Xiaoyan Tang v. Citizens Bank, 821 F.3d 206, 218–19 (1st Cir. 2016)

(citing Noviello v. City of Bos., 398 F.3d 76, 88 (1st Cir. 2005)).

             We begin with Bonilla's contention that she has met her

burden at summary judgment to show that there is a genuine issue

of triable fact as to whether MVM retaliated against her for her




engaging in "piggybacking" by giving Bonilla "access through
secured doors," MVM suspended Rodriguez from work for five days
without pay and took away her airport badge.         At the time,
Rodriguez's disciplinary record included three disciplinary
actions in the last year and a prior suspension from work related
to one of those actions. Santiago, also based in part on his past
disciplinary record which included one disciplinary action -- a
written reprimand -- in the last year, was suspended by MVM from
work for two days without pay and lost his airport badge. However,
like Bonilla, both were eventually terminated (on the same day as
Bonilla) after ICE informed MVM that, because of their conduct,
Bonilla, Rodriguez and Santiago should all be "removed from the
contract immediately."


                                    - 12 -
EEOC filing.    We agree, however, with the District Court's ruling

that she has not.

             In arguing otherwise, Bonilla points to the fact that

MVM decided to terminate her soon after she had filed her EEOC

complaint.     But MVM's decision to do so at that time is "readily

explain[ed]" by the timing of ICE's request that she be removed

from the contract, as MVM received that request on the same day

that she filed her complaint and MVM then removed her the next

day.   See Micheo-Acevedo v. Stericycle of P.R., Inc., 897 F.3d

360, 366 (1st Cir. 2018).     And Bonilla identifies no evidence to

provide a basis from which a jury could conclude that MVM prompted

ICE to make the request at that time due to Bonilla's EEOC filing.

Thus, we do not see how the proximity of that termination decision

to her filing of the EEOC complaint, without more, can provide a

basis for permitting this claim to survive summary judgment.

             Bonilla does also argue that MVM retaliated against her

through adverse employment actions short of termination.        She

points in particular to MVM's July 10 citation stripping her of

her security badge and reassigning her to a non-airport facility.

Notably, however, her protected decision to file her EEOC complaint

occurred after July 10.    Thus, MVM's decision to strip her of her

security badge and to reassign her could not have been retaliation

for that protected conduct.




                                - 13 -
          That leaves only, then, the question of whether her

internal complaints to MVM that occurred on or before July 10

constituted protected conduct, such that the adverse employment

actions taken on July 10 could reasonably be deemed to have been

taken in retaliation for that protected conduct. The District Court

concluded, however, that the internal complaints that Bonilla

allegedly made prior to July 10 did not constitute protected

activity,5 and Bonilla does not develop any argument on appeal as

to why those complaints may be properly characterized as having

protested or opposed "statutorily prohibited discrimination" as

opposed to merely workplace behavior of which she disapproved.

Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)

(quoting Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir.

2000)). Thus, we view any argument that such complaints constitute

protected activity to be waived for lack of development.       See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting

that arguments undeveloped on appeal are waived).

          For these reasons, we affirm the District Court's ruling

granting MVM summary judgment as to Bonilla's Title VII retaliation

claim.



     5 Specifically, the District Court pointed to the complaints
that Bonilla raised about Ortiz during her June 24 meeting with
three MVM supervisors. Bonilla alludes to earlier complaints in
her brief, but similarly does not address why these complaints
would qualify as protected activity.


                              - 14 -
                                            D.

                  Finally,   Bonilla      appears    also    to   be    appealing      the

District Court's grant of summary judgment for the Puerto Rico law

claims that "correspond[]" to her Title VII claims.6                               But, as

Bonilla makes no argument that her Puerto Rico law claims survive

if her Title VII claims do not, we affirm the District Court's

summary judgment ruling dismissing Bonilla's claims against MVM

pursuant to Puerto Rico Law 80 (Unjust Discharge Act), P.R. Laws

Ann.       tit.    29   §§   185a,   et   seq.;     Puerto   Rico      Law   100    (anti-

discrimination statute), P.R. Laws Ann. tit. 29 §§ 146, et seq.;

and Puerto Rico Law 115 (anti-retaliation statute), P.R. Laws Ann.

tit. 29 §§ 194, et seq.7

                                           III.

                  We,   therefore,     affirm     the   District       Court's      ruling

granting MVM's motion for summary judgment.




       6
       Bonilla expressly does not contest the District Court's
summary judgment ruling concerning her claims against MVM under
Puerto Rico Law Articles 1802 and 1803, P.R. Laws Ann. tit. 31 §§
5141-42.
     7 To the extent Bonilla also means to argue that her Puerto

Rico law claims survive even if her Title VII claims do not, we
deem any such argument waived for lack of development. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


                                          - 15 -
